As filed with the Securities and Exchange Commission on February 25, 1998
Registration No. 333-43999
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
PRE-EFFECTIVE AMENDMENT NO. 1
to
FORM S-2
REGISTRATION STATEMENT
Under
The Securities Act of 1933
-----------------------------
BOSTON RESTAURANT ASSOCIATES, INC.
(Exact Name Of Registrant As Specified In Its Charter)
<TABLE>
<S> <C> <C>
Delaware 5812 61-1162263
(State or Other Jurisdiction Of (Primary Standard Industrial (I.R.S. Employer
Incorporation Or Organization) Classification Code Number) Identification Number)
</TABLE>
999 Broadway, Suite 400
Saugus, MA 01906
(781) 231-7575
----------------------------------------
(Address, Including Zip Code, And Telephone Number, Including
Area Code, Of Registrant's Principal Executive Offices)
George R. Chapdelaine
President and Chief Executive Officer
999 Broadway, Suite 400
Saugus, MA 01906
(781) 231-7575
----------------------------------------
(Name, Address, Including Zip Code, And Telephone Number,
Including Area Code, Of Agent For Service)
With Copies to:
David H. Murphree, Esq.
Brown, Rudnick, Freed & Gesmer
One Financial Center
Boston, Massachusetts 02111
Tel: (617) 856-8200
----------------------------------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any jurisdiction in which such offer, solicitation or sale would be unlawful
prior to registration or qualification under the securities laws of any such
jurisdiction.
PROSPECTUS (Subject to Completion)
Dated February 25, 1998
2,006,277 Shares
BOSTON RESTAURANT ASSOCIATES, INC.
Common Stock
Boston Restaurant Associates, Inc., a Delaware corporation ("BRAI" or the
"Company"), is distributing to the holders of record of the Company's
outstanding Common Stock, par value $.01 per share ("Common Stock"), at the
close of business on February 18, 1998 (the "Record Date") non-transferable
subscription rights (the "Rights") to subscribe for and purchase an aggregate of
up to 2,006,277 additional shares of its Common Stock (the "Shares") at a
subscription price of $1.00 per share (the "Subscription Price").
Each holder of record of Common Stock on the Record Date will receive .4
Rights for each share of Common Stock held (or one Right for every 2.5 shares of
Common Stock). The Rights will be evidenced by non-transferable certificates and
will expire at 5:00 p.m., Eastern Standard Time, on March 20, 1998, unless
extended for up to five days. No fractional Rights will be distributed, or cash
in lieu paid, by BRAI. The number of Rights distributed by BRAI to each record
holder will be rounded down to the nearest whole number.
Each of the Shares purchasable upon exercise of the Rights is identical to
the shares of the Common Stock of BRAI currently trading on the Nasdaq SmallCap
Market under the symbol "BRAI". On February 24, 1998, the closing price per
share of the Common Stock as reported on the NASDAQ SmallCap Market was $1.50.
To the extent that Rights are not exercised, the Company will offer any
remaining Shares first to certain employees and second to stockholders who have
indicated a desire to exercise the Oversubscription Privilege. See "The Offering
- - Employee Subscription Privilege" and "- Oversubscription Privilege." The
offering of the Shares both to existing stockholders through the issuance of the
Rights and to employees is referred to herein as the "Offering." A subscription
to purchase Shares in the Offering is irrevocable. The Offering is not
conditioned upon the receipt of subscriptions for any minimum number of Shares.
THE SECURITIES OFFERED HEREBY INVOLVE A HIGH DEGREE OF RISK.
SEE "RISK FACTORS" BEGINNING ON PAGE 7.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
- -------------------------------------------------------------------------------
Underwriting Discounts
Price to Public and Commissions Proceeds to BRAI(1)
Per Share $1.00 $0 $1.00
Total $2,006,277 $0 $2,006,277
- -------------------------------------------------------------------------------
(1) Before deducting estimated expenses of $200,000 payable by the Company.
The date of this Prospectus is February __, 1998
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Exchange
Act and in accordance therewith files reports, proxy statements and other
information with the Commission. Such reports, proxy statements and other
information filed by the Company may be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Room 1024, Judiciary Plaza, Washington, D.C. 20549, and at the Commission's
regional offices at CitiCorp Center, 500 West Madison, Suite 1400, Chicago,
Illinois 60661 and Seven World Trade Center, Suite 1300, New York, New York
10048. Copies of such material can be obtained from the Public Reference Section
of the Commission, 450 Fifth Street, N.W., Room 1024, Judiciary Plaza,
Washington, D.C. 20549, at prescribed rates. Such reports, proxy statements and
other information filed by the Company can be inspected at the offices of the
Boston Stock Exchange, Inc., One Boston Place, Boston, Massachusetts 02100 and
at the offices of the Nasdaq Stock Market, 1735 K Street, N.W., Washington, D.C.
20006. The Commission also maintains a Web site that contains reports, proxy and
information statements and other information regarding issuers such as the
Company that file electronically with the Commission. The address of the
Commission's Web site is http://www.sec.gov.
The Company has filed with the Commission a Registration Statement on Form
S-2 (together with all amendments, exhibits, schedules and supplements thereto,
the "Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the securities offered hereby. This
Prospectus, which forms a part of the Registration Statement, does not contain
all the information set forth in the Registration Statement, certain parts of
which have been omitted in accordance with the rules and regulations of the
Commission. For further information with respect to the Company and the
securities offered hereby, reference is made to the Registration Statement and
to the schedules and exhibits filed therewith. Statements contained in this
Prospectus as to the contents of certain documents are not necessarily complete,
and, in each instance, reference is made to the copy of the document filed as an
exhibit to the Registration Statement, each such statement being qualified in
all respects by such reference. Copies of the Registration Statement, including
the exhibits thereto, may be inspected without charge at the Commission's
offices described above, and copies of all or any part thereof may be obtained
from the Commission upon payment of certain fees prescribed by the Commission.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents previously filed with the Securities and Exchange
Commission (the "Commission") are hereby incorporated by reference into this
Prospectus:
(i) the Company's Annual Report on Form 10-KSB for the year ended April 27,
1997;
(ii) the Company's Proxy Statement as filed with the Commission on
August 4, 1997;
(iii) the Company's Quarterly Report on Form 10-QSB for the quarter ended
October 26, 1997; and
(iv) the Company's Quarterly Report on Form 10-QSB for the quarter ended
July 27, 1997; as filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus and
the Registration Statement of which it is a part to the extent that a statement
contained herein modifies or replaces such statement. Any statement so modified
or superseded shall not be deemed, in its unmodified form, to constitute a part
of this Prospectus.
2
<PAGE>
"SAFE HARBOR" STATEMENT UNDER THE PRIVATE SECURITIES
LITIGATION REFORM ACT OF 1995
----------------------------------------------------
Forward-looking statements in this Prospectus, including without
limitation statements relating to the adequacy of the Company's resources,
expansion plans and franchising opportunities, are made pursuant to the safe
harbor provisions of the Private Securities Litigation Reform Act of 1995.
Investors are cautioned that such forward-looking statements involve risks and
uncertainties, including without limitation: potential quarterly fluctuations in
the Company's operating results; seasonality of sales; competition; risks
associated with expansion; the Company's reliance on key risks associated with
expansion; the Company's reliance on key employees; risks generally associated
with geographic concentration of the industry; risks associated with geographic
concentration of the Company's restaurants; risks associated with serving
alcoholic beverages; and other risks and uncertainties indicated from
time-to-time in the Company's filings with the Securities and Exchange
Commission.
3
<PAGE>
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PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information and financial data (including the financial statements and the notes
thereto) appearing elsewhere in or incorporated by reference into this
Prospectus.
The Company
The Company owns and operates a chain of eight pizzerias under the name
Pizzeria Regina(R), six in Massachusetts, one in New Jersey and one in Virginia.
Founded in 1926, the original Pizzeria Regina has served its signature
Neapolitan style, thin crust pizza, prepared in gas-fired brick ovens, for more
than 70 years. The Company believes that the Pizzeria Regina pizza and brand
name are local symbols of superior and distinctive pizza. See "Business."
During the next 36 months, the Company plans to open up to 10 additional
Pizzeria Regina food court kiosks in high volume suburban retail malls,
including both Company owned and franchised pizzerias. The Company believes that
mall owners are changing their strategies and retrofitting malls to emphasize
food courts that feature premium quality, fast service menu items. As a result,
the Company believes that food court kiosks in these malls represent an
attractive vehicle for increasing distribution of its premium brick oven pizza.
The Company recently entered into two leases for new food court sites. In
addition, the Company is actively seeking franchisees and has filed a Uniform
Franchise Offering Circular in certain states. See "Business."
The Company's executive offices are located at 999 Broadway, Saugus, MA
01906, telephone: (781) 231-7575.
The Offering
The Rights Offering BRAI is distributing to holders of
record of Common Stock at the close of
business on February 18, 1998 (the
"Record Date") non-transferable
subscription rights (the "Rights") to
subscribe for and purchase additional
shares of BRAI. Each holder of BRAI
Common Stock will receive .4
non-transferable Rights for each share
of BRAI Common Stock held of record on
the Record Date, rounded down to the
nearest whole Right (the "Rights
Offering"). Up to an aggregate maximum
of 2,006,277 Rights will be distributed
pursuant to the Rights Offering. Each
Right will be exercisable for one share
of BRAI Common Stock. An aggregate of
2,006,277 shares of BRAI Common Stock
has been reserved for issuance upon
exercise of the Rights. See "The
Offering."
Record Date February 18, 1998.
Expiration Date The Rights will expire at 5:00 p.m. EST
on March 20, 1998, or on such later date
as the Company may determine, up to
March 25, 1998. See "The
Offering-Expiration Date."
Basic Subscription
Privilege Rights holders are entitled to purchase
one share of BRAI Common Stock for each
Right held (the "Basic Subscription
Privilege"). See "The Offering - Basic
Subscription Privilege."
Oversubscription
Privilege Each holder of Rights who elects to
exercise his Basic Subscription
Privilege may also subscribe for any
number of additional Shares not
subscribed for through the Basic
Subscription Privilege and the Employee
Subscription Privilege described below
("Excess Shares"). If the Excess Shares
are not sufficient to satisfy all
subscriptions pursuant to the
Oversubscription Privilege, the Excess
Shares will be allocated among those
exercising the Oversubscription
Privilege in proportion to the number of
shares each has
4
<PAGE>
purchased pursuant to the Basic
Subscription Privilege and the Employee
Subscription Privilege. See "The
Offering - Oversubscription Privilege."
Employee Subscription
Privilege Persons who were non-director employees
of the Company both on January 1, 1997
and on the Record Date shall be offered
the first opportunity to purchase Shares
not purchased through the exercise of
the Basic Subscription Privilege, up to
an aggregate of 100,000 shares (the
"Employee Subscription Privilege"). See
"The Offering - Employee Subscription
Privilege."
No Minimum The acceptance of subscriptions by the
Company is not conditioned upon the
receipt of any minimum number of shares.
See "The Offering - Exercise of Rights".
Subscription Price The purchase price for all Shares
purchased, whether pursuant to the Basic
Subscription Privilege, the
Oversubscription Privilege, the Employee
Subscription Privilege or the Directors'
Commitment, will be $1.00 in cash per
share (the "Subscription Price"). See
"The Offering - The Rights Offering."
Common Stock Outstand-
ing After Offering 7,021,970 shares, exclusive of shares
issuable upon exercise of stock
warrants, stock options or conversion of
convertible securities outstanding as of
the Record Date, assuming all Shares
offered hereby are sold. See "Dilution."
Transferability
of Rights The Rights are not transferable, except
by operation of law in the event of
death or dissolution of the Record Date
holder. See "The Offering - The Rights
Offering."
Procedure for Exercise Basic Subscription Privileges and
Oversubscription Privileges may be
exercised by properly completing a
Subscription Certificate evidencing the
Rights (a "Subscription Certificate")
and forwarding the Subscription
Certificate, together with payment of
the Subscription Price for each Share
subscribed for pursuant to the Basic
Subscription Privilege and
Oversubscription Privilege, to the
Subscription Agent on or prior to the
Expiration Date. If the mail is used to
forward Subscription Certificates, it is
recommended that insured, registered
mail be used. Alternatively, the
Guaranteed Delivery Procedures as
described in "The Offering - Exercise of
Rights" may be used. Once a holder of
Rights has exercised the Basic
Subscription Privilege or the
Oversubscription Privilege, that
exercise may not be revoked. See "The
Offering - No Revocation."
5
<PAGE>
Procedure for Foreign
Stockholders Subscription Certificates will not be
mailed to holders of BRAI Common Stock
whose addresses are outside the United
States or who have an APO or FPO
address, but will be held by the
Subscription Agent for their account. To
exercise the Rights represented thereby,
such holders must notify the
Subscription Agent by completing an
International Holder Subscription Form,
which will be delivered to such holders
in lieu of a Subscription Certificate,
and sending it by mail or telecopy to
the Subscription Agent. See "The
Offering - Foreign and Certain Other
Stockholders."
Persons Holding
Through Others Persons holding BRAI Common Stock and
receiving the Rights distributable with
respect thereto through a broker,
dealer, commercial bank, trust company
or other nominee, as well as persons
holding stock certificates personally
who would prefer to have such
institutions effect transactions
relating to the Rights on their behalf,
should contact the appropriate
institution or nominee and request it to
effect the transactions for them. See
"The Offering - Exercise of Rights."
Issuance of Certificates Certificates representing BRAI Common
Stock purchased pursuant to the Offering
will be delivered to subscribers as soon
as practicable after the eighth business
day following the Expiration Date. See
"The Offering - Exercise of Rights."
Use of Proceeds General corporate purposes, repayment of
indebtedness and opening of additional
locations See "Use of Proceeds."
Subscription Agent American Stock Transfer & Trust Company.
================================================================================
6
<PAGE>
RISK FACTORS
An investment in the shares being offered hereby involves a high degree of
risk. Accordingly, prospective investors should consider carefully the following
risk factors, in addition to the other information in this Prospectus, in
evaluating an investment in the shares offered hereby.
Risks Related to Planned Expansion
The Company intends to open additional Pizzeria Regina food court or
in-line restaurants. During the next 36 months the Company plans to open up to
10 additional food court kiosks in high volume retail malls, including both
Company owned and franchised pizzerias. The Company's ability to open additional
Company restaurants and acquire franchises will depend upon a number of factors
such as identifying satisfactory sites, negotiating satisfactory leases,
securing requisite governmental permits and approvals, adequate supervision of
construction, and recruiting and training management personnel, some of which
are beyond the control of the Company. There can be no assurance that the
Company will be able to open any of its planned new restaurants within budget or
on a timely basis, if at all, or that any of the new restaurants will operate
profitably. If the Company is unable to expand as planned, it may reduce the
Company's ability to increase profitability. See "Use of Proceeds" and
"Management's Discussion and Analysis of Financial Condition and Results of
Operation" in the Company's Form 10-KSB.
Possible Need of Additional Funding; Effect of Undersubscription
The Company believes that its anticipated cash flow from operations,
together with the proceeds of this Offering, if it is fully subscribed, will be
sufficient to fund its working capital needs and expansion plans for at least
the 12 months following the date of this Prospectus. However, there can be no
assurance that this will be the case. Changes in the Company's business or its
business plan could affect its capital requirements. Moreover, there can be no
assurance that the Company will have sufficient revenues after the end of that
12 month period to continue to fund its expansion plans and other operating
requirements. If the Offering is not fully subscribed, or is not subscribed at
all, the Company would have sufficient funds for working capital, but the
Company's expansion plans would be adversely affected. In the event the Company
requires additional financing, there can be no assurance that the Company would
be able to obtain financing on favorable terms, if at all, and in the event that
the Company requires additional financing, failure to do so could have a
material adverse effect on the Company's business. See "Use of Proceeds" and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations - Liquidity and Capital Resources" in the Company's Form 10-KSB.
Risks of Restaurant Industry
The Company's future performance will be subject to a number of factors
that affect the restaurant industry generally, including (i) the highly
competitive nature of the restaurant industry, (ii) general and local economic
conditions, (iii) changes in tastes and eating and drinking habits, (iv) changes
in tax laws that affect the deductibility of business related meals, (v) changes
in food costs due to shortages, inflation or other causes, (vi) population and
traffic patterns, (vii) demographic trends, (viii) general employment and wage
and benefit levels in the restaurant industry, which may be affected by changes
in federal and local minimum wage requirements or by federally or locally
mandated health insurance, and (ix) the number of people willing to work at or
near the minimum wage. See "Business - Competition" in the Company's Form
10-KSB.
Risks of Franchising
Franchising operations present numerous risks, and the Company faces
vigorous competition from other similar type restaurant chains in attracting and
retaining suitable franchisees. The Company is subject to regulation by the
Federal Trade Commission and must comply with certain state laws that govern the
offering, sale, and termination of franchises and the refusal to renew
franchises. The Company has limited experience in franchising restaurants.
Franchisees' failure to maintain the Company's high standards could adversely
affect customer attitudes towards
7
<PAGE>
the Company's restaurants. Granting exclusive territory agreements may also
limit future expansion opportunities for Company-owned restaurants. Franchise
developers or franchisees may leave the franchise system at the end of the term
of their development or franchise agreements or may attempt to terminate their
agreements before the end of their terms, thereby reducing royalty revenues.
Further, while franchising permits the Company to increase the geographic
coverage of its restaurant system without substantial investments of capital, it
also means that the Company may not have direct operational control over the
Company's franchised restaurants. The Company has recently entered into an
international agreement with a company controlled by a Company director to
develop area franchises outside the Americas, anticipated to be principally
Europe, the Far East and Pacific Rim. Under that agreement, the Company is
obligated to pay a monthly management fee of $7,000 which may be deferred until
the Company's franchising subsidiary achieves positive cash flow but all
deferred amounts would be payable after achievement of positive cash flow. See
"Business - Franchising."
Competition
The restaurant business in highly competitive. Price, restaurant location,
food quality, service and attractiveness of facilities are important aspects of
competition, and the competitive environment is often affected by factors beyond
the Company's or a particular restaurant's control, including changes in the
public's tastes and eating and drinking habits, population and traffic patterns
and local economic conditions. The Company's restaurants compete with a wide
variety of restaurants ranging from national and regional restaurant chains
(some of which have substantially greater financial resources than the Company)
to locally-owned restaurants. There is also active competition for liquor
licenses in certain markets and for advantageous commercial real estate sites
suitable for restaurants. The Pizzeria Regina restaurants compete with other
fast-service, high volume food providers on the basis of price, value,
relationship, location, and speed of service. The Polcari's North End restaurant
competes with other casual, full service restaurants primarily on the basis of
menu selection, quality, price, service, ambiance and location. See "Business -
Competition" in the Company's Form 10-KSB.
Dependence on Key Executive Officers
The future success of the Company will depend in large part on the
continued services of its President, George R. Chapdelaine, as well as on the
Company's ability to attract and retain other qualified senior management
personnel. The Company has retained the services of Mr. Chapdelaine through
April 1999 pursuant to an employment agreement. The Company also has and intends
to maintain key man life insurance in the amount of $2,000,000 on the life of
Mr. Chapdelaine. See "Management" in the Company's Form 10-KSB.
Possibility of Nasdaq Delisting
The Company's Common Stock currently is quoted on the Nasdaq SmallCap
Market. The continued quotation of the Company's Common Stock will be
conditioned upon the Company continuing to meet certain asset, capitalization or
income tests and stock price tests established by The Nasdaq Stock Market, Inc.
("Nasdaq"). To maintain eligibility for continued quotation on the Nasdaq
SmallCap Market, the Company would be required to maintain a bid price of at
least $1.00 per share plus (i) net tangible assets in excess of $2.0 million, or
(ii) a market capitalization of at least $35.0 million or (iii) annual net
income of $500,000. Although prior to this Offering the Company does not meet
the net tangible assets test which became effective on February 23, 1998, if
more than $1,666,000 is sold in this Offering, upon completion of the Offering
the Company believes that it will meet that and the other tests set forth by
Nasdaq. If the Company fails to raise at least $1,666,000 in this Offering or
fails any of the other applicable tests, the Common Stock may be delisted from
quotation on such system. The effects of delisting include the limited release
of the market prices of the Company's securities and limited news coverage of
the Company. Delisting may restrict investors' interest in the Common Stock and
materially and adversely affect the trading market and prices for the Common
Stock and the Company's ability to issue additional securities or to secure
additional financing.
Geographic Concentration
A total of seven of the Company's nine existing restaurants are located in
Eastern Massachusetts, and one of the next two of the Company's restaurants is
scheduled to open in Eastern Massachusetts. As a result, the Company's results
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of operations may be materially affected by changes in the Massachusetts
economy. See "Business - General" and "- Expansion and Development Strategy."
Government Regulation
Each of the Company's restaurants is subject to state and local laws and
regulations governing health, sanitation and safety and the sale of alcoholic
beverages. The selection of new restaurant sites is affected by federal, state
and local laws and regulations regarding environmental matters, zoning and land
use and the sale of alcoholic beverages. Varied requirements (particularly at
the local level) may result in increases in the cost and time required for
opening new restaurants, as well as increases in the cost of operating
restaurants. Difficulties in obtaining necessary licenses or permits could cause
delays in or cancellations of new restaurant openings. The failure to receive or
retain, or a delay in obtaining, a food or liquor license in a particular
location could adversely affect or cause the Company to terminate its operations
at that location and could adversely affect the Company's business. The Company
has not experienced any material violations or citations, and the Company has
not experienced delays of more than thirty days in obtaining such licenses. See
"Business - Government Regulation" in the Company's Form 10-KSB.
Dram Shop Liability
The Company is subject to "dram shop" statutes, which generally provide
that an individual injured by an intoxicated person has the right to recover
damages from an establishment that wrongfully served alcoholic beverages to the
intoxicated person. The Company currently maintains dram shop insurance. There
can be no assurance that dram shop insurance will continue to be available to
the Company at commercially reasonable prices, if at all, or that such
insurance, if maintained, will be sufficient to cover any claims against the
Company for dram shop liability for which it may be held liable. See "Business -
Government Regulation" in the Company's Form 10-KSB.
Control by Management
Prior to this offering, the Company's executive officers, directors and
their affiliates and members of their immediate families control the vote of
approximately 38.5% of the outstanding shares of the Common Stock, of which
25.2% are held jointly by George R. Chapdelaine and John P. Polcari, Jr. as the
Voting Trustees under an Amended and Restated Voting Trust Agreement dated April
28, 1994 (the "Voting Trust Agreement"). Those stockholders are able to control
or exert substantial influence over actions requiring stockholder approval,
including elections of the Company's directors, amendments to the Certificate of
Incorporation, mergers, sales of assets or other business acquisitions or
dispositions. The Voting Trust will remain in existence until April 29, 2004
unless earlier terminated by all of the beneficiaries of the Voting Trust. See
"Security Ownership of Certain Beneficial Owners and Management" in the
Company's August 7, 1997 Proxy Statement.
Volatility of Stock Price
The Company's Common Stock is traded on the Nasdaq SmallCap Market and,
compared to many other publicly traded companies, the Company is relatively
small and has a relatively small average trading volume. Quarterly operating
results of the Company or other restaurant companies, changes in general
conditions in the economy, the restaurant industry, or the financial markets, or
other developments affecting the Company, its competitors or the financial
markets, could cause the market price of the Common Stock to fluctuate
significantly. In addition, the stock market has recently experienced extreme
price and volume fluctuations. These broad market fluctuations may adversely
affect the market price of the Common Stock. See "Price Range of Common Stock."
Immediate Substantial Dilution
Based upon the net tangible book value of the Company as of October 26,
1997, purchasers of the shares offered hereby will experience immediate
substantial dilution of approximately 70% per share of Common Stock. See
"Dilution."
9
<PAGE>
USE OF PROCEEDS
The Offering is not conditioned upon the subscription to a minimum number
of Shares. If all Shares are sold, the net proceeds to be received by the
Company from the Offering are estimated to be approximately $1,800,000, after
deducting estimated offering expenses payable by the Company. The Company
intends to use the net proceeds of the Offering as follows, in descending order
of priority:
Working capital and other general corporate purposes........... $100,000
Repayment of certain indebtedness (1).......................... 500,000
Opening of additional Pizzeria Regina locations................ 1,200,000
---------
Total.......................................................... $1,800,000
==========
- --------
(1) Convertible debentures bearing interest at variable rates of 10% through
December 31, 1998, 12% through December 31, 1999, and 14% through December
31, 2011, payable semi-annually and convertible into the Company's Common
Stock at a conversion rate of $1.25 per share. The debentures are due
December 31, 2011. Proceeds of the debt have been used for the expansion of
the Pizzeria Regina concept.
DILUTION
The net tangible book value of the Company as of October 26, 1997 is
approximately $334,000, or $.07 per share. The net tangible book value per share
is equal to the Company's total tangible assets less total liabilities, divided
by the total number of shares of Common Stock outstanding. If all of the Shares
are sold, after giving effect to the Offering, and assuming the application of
the estimated net proceeds of $1,800,000, the net tangible book value of the
Company as of October 26, 1997 would be approximately $2,134,000, or $.30 per
share. This represents an immediate increase in net tangible book value of $.23
per share and an immediate dilution of $.70 to persons purchasing Shares in this
Offering. The following tables illustrates this transaction:
Subscription Price per share $1.00
Net tangible book value per share as of
October 26, 1997, before Offering $.07
Increase per share attributable to payments
by persons purchasing in Offering $.23
Net tangible book value per share as of
October 26, 1997, after Offering $.30
----
Dilution per share, after Offering $.70
====
To the extent that less than all of the Shares are sold, the amount of
dilution would be proportionately reduced.
The following table summarizes the number of shares of Common Stock
purchased from the Company, the total consideration paid by existing
shareholders and their predecessors and the total consideration to be paid by
purchasers in this Offering, if all Shares are sold:
Shares Purchased
Number Percent Dollar Percentage
--------- ------- ---------- ----------
Existing shares of BRAI Common Stock 5,015,693 71.4% $9,112,215 82.0%
New stock issue from Offering 2,006,277 28.6% $2,006,277 18.0%
--------- ----- ----------- -----
Total 7,021,970 100.0% $11,118,492 100.0%
========= ====== =========== ======
10
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THE OFFERING
The Rights Offering
The Company is distributing Rights to each holder of record of outstanding
Common Stock on the Record Date. Stockholders will receive .40 Rights for each
share of Common Stock held by them of record on the Record Date, rounded down to
the nearest whole number. Each Right will entitle the holder to purchase one
share of Boston Restaurant Associates, Inc. Common Stock at the Subscription
Price of $1.00 per share. No fractional Rights or cash in lieu thereof will be
issued or paid by the Company. These Rights are not transferable except by
operation of law in the event of death or dissolution of the holder.
Expiration Date
The Rights will expire at 5:00 P.M. Eastern Standard Time or March 20, 1998
unless the rights exercise period is extended by the Company for up to five
additional days (as extended, the "Expiration Date"). After the Expiration Date,
unexercised Rights will be null and void. The Company will not be obliged to
honor any purported exercise of Rights received by the Subscription Agent after
the Expiration Date, regardless of when the documents relating to such exercise
were sent, except pursuant to the Guaranteed Delivery Procedures described
below. Stockholders will be sent notice of any extension of the Expiration Date
not later than four business days before the Expiration Date, and announcement
of any extension will be made through a press release, a copy of which will be
filed with the Securities and Exchange Commission under cover of Form 8-K.
Basic Subscription Privilege
Each Right will entitle the holder thereof to receive, upon payment of the
Subscription Price, one share of Boston Restaurant Associates, Inc. Common Stock
(the "Basic Subscription Privilege"). Certificates representing shares of Common
Stock purchased pursuant to the Basic Subscription Privilege will be delivered
to subscribers as soon as practicable after the eighth business day following
the Expiration Date.
Oversubscription Privilege
Subject to the allocation described below, each Right also carries the
right to subscribe for any number of the Excess Shares not subscribed for
through the Basic Subscription Privilege and the Employee Subscription Privilege
(the "Oversubscription Privilege"). If the Excess Shares are not sufficient to
satisfy all subscription requests pursuant to the Oversubscription Privilege,
the Excess Shares will be allocated pro rata (subject to the elimination of
fractional shares) among those holders of Rights exercising the Oversubscription
Privilege in proportion to the number of shares each beneficial holder
exercising the Oversubscription Privilege has purchased pursuant to the Basic
Subscription Privilege and the Employee Subscription Privilege; provided,
however, that if that allocation results in any Rights holder being allocated a
greater number of Excess Shares than such holder subscribed for pursuant to the
exercise of the Oversubscription Privilege, then that holder will be allocated
only such number of Excess Shares as he or she subscribed for, and the remaining
Excess Shares will be allocated among all other holders exercising the
Oversubscription Privilege. Only holders who exercise the Basic Subscription
Privilege will be entitled to exercise the Oversubscription Privilege.
Certificates representing shares of Common Stock purchased pursuant to the
Oversubscription Privilege will be delivered to subscribers as soon as
practicable after the eighth business day following the Expiration Date and
after all prorations have been effected.
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Exercise of Rights
Rights may be exercised by delivering to American Stock Transfer and Trust
Company (the "Subscription Agent"), on or prior to 5:00 p.m., Eastern Standard
Time, on the Expiration Date, a properly completed and executed Subscription
Certificate evidencing such Rights, with any required signatures guaranteed,
together with payment in full of the Subscription Price for each Share
subscribed for pursuant to the Basic Subscription Privilege and the
Oversubscription Privilege.
Any bank, broker and other nominee holder of Rights who exercises the Basic
Subscription Privilege and the Oversubscription Privilege on behalf of a
beneficial owner of Rights will be required to certify to the Subscription Agent
and the Company, in connection with the exercise of the Oversubscription
Privilege, as to the aggregate number of Rights that have been exercised and the
number of Shares that are being subscribed for pursuant to the Oversubscription
Privilege by each beneficial owner of Rights on whose behalf that nominee holder
is acting.
The Company's acceptance of subscriptions is not conditioned upon the
receipt of any minimum number of Shares. A subscription to purchase Shares is
irrevocable.
The address to which the Subscription Certificates and payment of the
Subscription Price should be delivered is:
American Stock Transfer & Trust Company
40 Wall Street
New York, New York 10005
Normal Procedure. Payment must be made in full by either (a) a check or
bank draft drawn upon a U.S. bank or postal, telegraphic or express money order
payable to American Stock Transfer and Trust Company, as Subscription Agent, or
(b) a wire transfer of funds to the account maintained by the Subscription Agent
for such purpose at Chase Manhattan Bank, NA, 55 Water Street, New York, New
York 10005, Account No. 610-093045. Any wire transfer of funds should clearly
indicate the identity of the subscriber who is paying the Subscription Price by
the wire transfer. The Subscription Price will be deemed to have been received
by the Subscription Agent only upon (i) clearance of any uncertified check, (ii)
receipt by the Subscription Agent of any certified check or bank draft drawn
upon a U. S. bank or of any postal, telegraphic or express money order, or (iii)
receipt of good funds in the Subscription Agent's account designated above. If
paying by certified personal check, please note that the funds paid in that way
may take up to five business days to clear. Accordingly, holders of Rights who
wish to pay the Subscription Price by means of uncertified personal check are
urged to make payment sufficiently in advance to ensure that such payment is
received and clears by the Expiration Date and are urged to consider payment by
means of certified or cashier's check, money order or wire transfer of funds.
Guaranteed Delivery Procedures. If a Rights holder wishes to exercise his
or her Rights, but time will not permit the Subscription Certificate to reach
the Subscription Agent on or prior to the Expiration Date, such Rights may
nevertheless be exercised if all of the following conditions (the "Guaranteed
Delivery Procedures") are met: (1) the holder has caused payment in full of the
Subscription Price for each Share being subscribed for pursuant to the Basic
Subscription Privilege and the Oversubscription Privilege to be received (in the
manner set forth above) by the Subscription Agent on or prior to the Expiration
Date; (2) the Subscription Agent receives, on or prior to the Expiration Date, a
guarantee notice (a "Notice of Guaranteed Delivery"), substantially in the form
of Exhibit D to this Prospectus, from a member firm of a registered national
securities exchange or a member of the National Association of Securities
Dealers, Inc. (the "NASD"), or from a commercial bank or trust company having an
office or correspondent in the United States (each, an "Eligible Institution"),
stating the name of the exercising Rights holder, the number of Rights
represented by the Subscription Certificate or Certificates held by such
exercising Rights holder, the number of Shares being subscribed for pursuant to
the Basic Subscription Privilege and the number of Shares, if any, being
subscribed for pursuant to the Employee Subscription Privilege or the
Oversubscription Privilege, and guaranteeing the delivery to the Subscription
Agent of any Subscription Certificate evidencing such Rights within three New
York Stock Exchange ("NYSE") trading days following the date of the Notice of
Guaranteed Delivery; and (3) the properly completed Subscription Certificate
evidencing the Rights being exercised, with any required signatures guaranteed,
is in fact received by the Subscription Agent within three NYSE trading days
following the date of the Notice of Guaranteed Delivery relating thereto. The
Notice of Guaranteed Delivery may be delivered to the Subscription Agent in the
same manner as Subscription Certificates at the address set forth above, or may
be transmitted to the Subscription Agent by
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<PAGE>
telegram or facsimile transmission (telecopy no. 718-234-500). Additional copies
of the form of Notice of Guaranteed Delivery are available upon request from the
Subscription Agent at the address set forth above.
Company Determinations Final. All questions concerning the timeliness,
validity, form and eligibility of any exercise of Rights will be determined by
the Company, whose determinations will be final and binding. The Company
reserves the right to waive any defect or irregularity in any subscription, or
permit a defect or irregularity to be corrected, within such time as it may
determine. Subscriptions will not be deemed to have been received or accepted
until all irregularities have been waived or cured. Neither the Company nor the
Subscription Agent will be under any duty to give notification of any defect or
irregularity in connection with the submission of Subscription Certificates or
incur any liability for failure to give such notification.
Any questions or requests for assistance concerning the method of
exercising Rights or requests for additional copies of this Prospectus or the
Notice of Guaranteed Delivery should be directed to the Subscription Agent.
Escrow Arrangements; Return of Funds. Funds received in payment of the
Subscription Price for Shares subscribed for will be held in a segregated
non-interest bearing account at the Subscription Agent pending completion of the
Offering. Monies will be held in escrow until the Offering is completed or is
cancelled. If the offering is cancelled for any reason, monies will be returned
to subscribers without interest or deduction promptly after cancellation.
However, completion of the Offering and acceptance of monies is not conditioned
upon the subscription to a minimum number of Shares. If a Rights holder
exercising the Oversubscription Privilege is allocated less than the number of
shares of Common Stock for which the holder wished to subscribe pursuant to the
Oversubscription Privilege, the excess funds paid by the holder will be returned
without interest or deduction promptly after the Expiration Date.
Miscellaneous. The instructions on the Subscription Certificates should be
read carefully and followed in detail. DO NOT SEND SUBSCRIPTION CERTIFICATES TO
THE COMPANY.
Unless a Subscription Certificate (i) provides that the shares of Common
Stock to be issued pursuant to the exercise of Rights represented thereby are to
be delivered to the record holder of such Rights, or (ii) is submitted for the
account of an Eligible Institution, the signature on a Subscription Certificate
must be guaranteed by an Eligible Institution.
THE METHOD OF DELIVERY OF SUBSCRIPTION CERTIFICATES AND PAYMENT OF THE
SUBSCRIPTION PRICE TO THE SUBSCRIPTION AGENT WILL BE AT THE RISK OF THE RIGHTS
HOLDERS, BUT IF SENT BY MAIL, IT IS RECOMMENDED THAT SUCH CERTIFICATES AND
PAYMENTS BE SENT BY REGISTERED MAIL, PROPERLY INSURED, WITH RETURN RECEIPT
REQUESTED, AND THAT A SUFFICIENT NUMBER OF DAYS BE ALLOWED TO ENSURE DELIVERY TO
THE SUBSCRIPTION AGENT AND CLEARANCE OF PAYMENT PRIOR TO 5:00 P.M., EASTERN
STANDARD TIME, ON THE EXPIRATION DATE. BECAUSE UNCERTIFIED PERSONAL CHECKS MAY
TAKE UP TO FIVE BUSINESS DAYS TO CLEAR, YOU ARE STRONGLY URGED TO PAY, OR
ARRANGE FOR PAYMENT, BY MEANS OF CERTIFIED OR CASHIER'S CHECK, MONEY ORDER OR
WIRE TRANSFER OF FUNDS.
Beneficial Owners; Street Name Holdings
Holders who hold shares of Common Stock for the account of others, such as
brokers, trustees, or depositories for securities, should notify the beneficial
owners of shares as soon as possible to ascertain the beneficial owners'
intentions and to obtain instructions with respect to the Rights. If the
beneficial owner so instructs, the record holder of such Rights should complete
the Subscription Certificates and submit them to the Subscription Agent with the
proper payment. In addition, beneficial owners of Common Stock or Rights held
through such a holder should contact the holder and request the holder to effect
transactions in accordance with the beneficial owner's instructions.
13
<PAGE>
Foreign and Certain Other Stockholders
Subscription Certificates will not be mailed to Holders whose addresses are
outside the United States or who have an APO or FPO address, but will be held by
the Subscription Agent for their account. To exercise Rights, such Holders must
notify the Subscription Agent by completing an International Holder Subscription
Form which will be delivered to such Holders in lieu of a Subscription
Certificate, and sending it by mail or telecopy to the Subscription Agent at the
address and telecopy number specified above.
No Revocation
ONCE A HOLDER OF RIGHTS HAS EXERCISED THE BASIC SUBSCRIPTION PRIVILEGE OR
THE OVERSUBSCRIPTION PRIVILEGE, OR AN EMPLOYEE HAS EXERCISED THE EMPLOYEE
SUBSCRIPTION PRIVILEGE, THAT EXERCISE MAY NOT BE REVOKED.
Employee Subscription Privilege
To the extent that less than all Shares are purchased under the Basic
Subscription Privilege, up to 100,000 Shares will be offered to current
employees of the Company, subject to the following conditions:
o The employee must have been employed by the Company on or before January 1,
1997 and be employed on the Record Date.
o The employee must be 18 years of age or older.
o The shares may be issued only to the employee.
In addition, the two director employees of the Company (Messrs. George R.
Chapdelaine and John J. Polcari, Jr.) will not be eligible to participate in the
Employee Subscription Privilege.
If the Shares not subscribed for through the Basic Subscription Privilege
are not sufficient to satisfy all subscription requests by employees pursuant to
the Employee Subscription Privilege, the Shares available will be allocated
(subject to the elimination of fractional shares) among subscribing employees in
proportion to the number of Shares requested by each. Certificates representing
Shares purchased pursuant to the Employee Subscription Privilege will be
delivered to subscribers as soon as practicable after the eighth business day
following the Expiration Date and after all allocations have been effected.
Current Prospectus and State Securities Law Restrictions
The holder of a Right may exercise the Right and an employee may purchase
Shares under the Employee Subscription Privilege only if a current prospectus
relating to the Shares is then in effect, and only if the Shares are qualified
for sale under the securities laws of the state in which the holder resides, or
are exempt from such qualifications. The Company believes that the sale of the
Rights and Shares offered hereby will either be exempt from qualification or
will be qualified in all states. However, any Shares purchased by California
residents will be subject to restrictions on their resale under California state
securities laws and may be resold by the holder only upon qualification or
pursuant to an exemption from the California qualification requirements.
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<PAGE>
The Rights may be deprived of any value if a current prospectus covering the
Common Stock issuable upon exercise of the Rights is not effective or if such
shares are not qualified in the states in which holders of the Rights reside.
The Company is distributing the Rights directly to stockholders without the
use of an underwriter or broker, except in the State of Florida where Axiom
Capital Management, Inc., a registered broker dealer with which a Company
director, Mr. Roger Lipton, is associated, has agreed to act as broker as an
accommodation to the Company for no consideration in order to comply with the
requirements of state securities laws.
In general, under Rule 144 as currently in effect, beginning 90 days after
the date of this Prospectus, a person (or persons whose shares are aggregated)
who has beneficially owned restricted shares for at least one year (including
the holding period of any prior owner except an affiliate of the Company), would
be entitled to sell within any three-month period a number of shares that does
not exceed the greater of: (i) one percent of the number of shares of Common
Stock then outstanding or (ii) the average weekly trading volume of the Common
Stock during the four calendar weeks preceding the filing of a Form 144 with
respect to such sale. Sales under Rule 144 are also subject to certain manner of
sale provisions and notice requirements and to the availability of current
public information about the Company. Under Rule 144(k), a person who is not
deemed to have been an affiliate of the Company at any time during the 90 days
preceding a sale, and who has beneficially owned the shares proposed to be sold
for at least two years (including the holding period of any prior owner except
an affiliate of the Company), is entitled to sell such shares without complying
with the manner of sale, public information, volume limitation or notice
provisions of Rule 144.
Federal Income Tax Consequences
The following summary describes certain United States federal income tax
considerations affecting holders of BRAI Common Stock receiving Rights in the
Rights Offering. This summary is based upon the Internal Revenue Code of 1986,
as amended (the "Code"), Treasury regulations, rulings, and decisions currently
in effect. This summary does not discuss all aspects of federal taxation that
may be relevant to a particular investor or to certain types of investors
subject to special treatment under the federal tax laws (for example, banks,
dealers in securities, life insurance companies, tax-exempt organizations, and
foreign persons), nor does it discuss any aspect of state, local, or foreign tax
laws. HOLDERS OF COMMON STOCK SHOULD CONSULT THEIR OWN TAX ADVISORS CONCERNING
THEIR INDIVIDUAL TAX SITUATIONS AND THE TAX CONSEQUENCES OF THE RIGHTS OFFERING
UNDER THE CODE AND UNDER ANY APPLICABLE STATE, LOCAL, OR FOREIGN TAX LAWS.
Distribution of the Rights to Holders of BRAI Common Stock. A holder of
BRAI Common Stock will not recognize taxable income for federal income tax
purposes as a result of the issuance to such holder of the Rights in respect of
those shares. Except as provided in the following sentence, the basis of such
Rights will be zero. If either (i) the fair market value of the Rights on the
date of distribution is 15% or more of the fair market value of the BRAI Common
Stock in respect of which they are received on such date, or (ii) the
stockholder elects, in the stockholder's federal income tax return for the
taxable year in which the Rights are received, to allocate part of the basis of
such Common Stock to the Rights, then the stockholder's basis in such BRAI
Common Stock will be allocated between the Common Stock and the Rights in
proportion to their respective fair market values on the date of distribution.
The holding period of a stockholder with respect to Rights received as a
distribution on the stockholder's Common Stock will include the stockholder's
holding period for the Common Stock in respect of which the Rights were issued.
The Company is required annually to notify the holders of Common Stock on
Internal Revenue Service Form 1099 of the amount of all dividends paid to such
holders during the prior year, including, for 1998, the fair market value of the
Rights (if any) on the date of distribution. The Company will determine the fair
market value of the Rights on that date.
Exercise of Rights. A holder of Rights will not recognize gain or loss upon
the exercise of the Rights. A holder of Rights who receives shares of Common
Stock upon such exercise will acquire a tax basis in those shares equal to the
sum of the price paid on exercise and the holder's tax basis in the Rights, if
any. The holding period of Common Stock received on exercise of the Rights will
begin with and include the date the Rights are exercised.
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<PAGE>
Expiration of Rights. A holder of Rights who fails to exercise the Rights
prior to the Expiration Date will be deemed to have sold such Rights on that
date for no consideration. Accordingly, if such unexercised Rights were held as
capital assets, the holder would recognize a capital loss equal to the amount of
such holder's adjusted tax basis in the Rights. Such a capital loss will be a
long-term capital loss or short-term capital loss, depending on the holding
period of the Common Stock upon which the Rights were issued and the period
during which the holder held the Rights before they expired.
Employee Subscribers. Any employee of BRAI who purchases Common Stock
pursuant to the Rights Offering (other than in his or her capacity as a
shareholder) must include in gross income the excess of the fair market value of
the Common Stock on the date of purchase over the amount paid for the Common
Stock (the "compensation amount"). BRAI will be obligated to treat such
compensation amount as wages paid to the employee and withhold federal income
and employment taxes from the employee's wages on such compensation amount.
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PRICE RANGE OF COMMON STOCK
The Common Stock (NASDAQ "BRAI") is traded publicly and is quoted on the
NASDAQ Small-Cap Market. On February 24, 1997, the last bid and asked prices of
the Common Stock as reported on the NASDAQ SmallCap Market were $1.50 and $1.56
per share, respectively.
The table below represents the quarterly high and low bid and asked prices
for the Common Stock for the period commencing April 28, 1996 and ending
February 23, 1998. The prices listed in this table reflect quotations without
adjustment for retail mark-up, markdown or commission, and may not represent
actual transactions.
Market For Common Equity
High Low High Low
Bid Bid Asked Asked
Fiscal Year Ended April 27, 1997
First Quarter................................ $1.06 $0.56 $1.08 $1.00
Second Quarter............................... 1.00 0.60 1.04 0.62
Third Quarter................................ 1.13 1.00 1.31 1.02
Fourth Quarter............................... 1.08 1.04 1.22 1.08
Fiscal Year Ended April 26, 1998
First Quarter................................ $1.31 $1.06 $1.44 $1.19
Second Quarter............................... 2.19 1.19 2.31 1.28
Third Quarter ............................... 1.75 1.38 1.94 1.38
Fourth Quarter through February 23, 1998..... 1.75 1.50 1.87 1.56
As of February 23, 1998 there were approximately 312 holders of record of
the Common Stock.
DIVIDEND POLICY
The Company has never paid cash dividends on its capital stock and does not
anticipate paying any cash dividends in the foreseeable future. Rather, the
Company intends to retain all of its future earnings to finance future growth.
RECENT DEVELOPMENTS
BRAI has formed a wholly owned subsidiary ("BRAII") for the purpose of
offering Pizzeria Regina franchise opportunities. In January 1998, the Company
entered into an International Development Agreement with Regina International,
Inc. ("Regina International"), a corporation controlled by Terrance Smith, a
director of the Company, to develop and manage franchise territories outside the
Americas. Under that agreement, Regina International agrees to use its best
efforts to market and promote the Company's franchise system within its
development territory in exchange for a monthly development fee and royalties.
It is anticipated that these activities will be primarily in Europe, the Far
East and the Pacific Rim. See "Risk Factors-Risks of Franchising" and
"Business-Franchising."
In connection with the sale of a restaurant to a non-affiliated third party
by the Company's predecessor, the Company is a guarantor of the lease payments
under the lease expiring in fiscal 2001. This non-affiliated third party is
currently seeking re-organization under the bankruptcy code. See Note 9 to the
Consolidated Financial Statements in the Company's Form 10-KSB for fiscal year
ended April 27, 1997.
17
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BUSINESS
General
The Company owns and operates a chain of eight pizzerias under the name
Pizzeria Regina in Massachusetts, New Jersey and Virginia. Founded in 1926, the
original Pizzeria Regina has served its signature Neapolitan style, thin crust
pizza, prepared in gas-fired brick ovens, for more than 70 years. The Company
believes that the Pizzeria Regina pizza and brand name are local symbols of
superior and distinctive pizza. The Company's operating plan is to expand
distribution of its premium brick oven pizza through food court kiosks serving
primarily the lunch market.
During the next 36 months, the Company plans to open up to ten additional
Pizzeria Regina food court kiosks in high volume suburban retail malls,
including both Company owned and franchised pizzerias. The Company believes that
mall owners are changing their marketing strategies and retrofitting malls to
emphasize food courts that feature premium quality, fast service menu items. As
a result, the Company believes that food court kiosks in these malls represent
an attractive vehicle for increasing distribution of its premium brick oven
pizza into the lunch market. The Company recently entered into leases for two
additional food court sites. The Company currently is seeking qualified
franchisees.
The Pizzeria Regina Brick Oven Pizza
The Company's signature product, its premium Neapolitan style, thin crust,
brick oven pizza, features a proprietary dough and pizza sauce and whole-milk
mozzarella cheese which the Company believes combine to produce a distinct
flavor and superior pizza. These pizzas are offered with a wide variety of fresh
vegetable and cured meat toppings. By baking its pizza in gas-fired brick ovens,
at very high temperatures for short periods of time, the Company is able to
produce a light, evenly cooked crust while preserving the flavor and moisture of
the toppings. In addition, the speed of the baking process enables the Company
to provide fast service and cater to high volume. The Company believes that the
quality of its pizza resulting from its proprietary ingredients and baking
process should enable it to appeal to both the lunch and dinner markets.
Existing Pizzeria Regina Operations
The eight Pizzeria Regina restaurants currently owned and operated by the
Company are fast service, high volume pizzerias that feature premium brick oven
pizza and cater primarily to the lunchtime diner, with the exception of the
original North End location which services both the lunch and diner markets. Of
these eight restaurants, six are food court kiosks (self-service, take-out style
emphasizing pizza slices with common area seating), and two are wait-service
restaurants (full-service style emphasizing whole pizzas with in-restaurant
seating). The Company operates one full service restaurant, Polcari's North End.
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Expansion and Development Strategy
The Company's operating plan is to expand the distribution of its Pizzeria
Regina brick oven pizza. The Company intends to open additional Pizzeria Regina
food court kiosks to appeal to quick dining lunch customers at suburban retail
malls.
The Company intends to open additional Pizzeria Regina food court kiosks
primarily in retail malls. The food court kiosks, serving primarily pizza slices
with multiple topping choices, operate side by side with other fast food vendors
and cater primarily to lunchtime diners. Menu items are presented in a
self-service, take-out style designed to allow customers to order, pay for and
consume their food in a very short period of time. Customers who desire to sit
down after purchasing their food may join customers of other food court vendors
in one or more designated common areas within the mall. The focused menu,
self-service, take-out style and common seating provide food court customers
with a fast dining, low cost alternative relative to more traditional full
service restaurants. The average per person food check at these locations
including beverages (alcohol beverages are not served at food court locations),
is currently approximately $4.25.
Based on the Company's experience and articles from trade journals, the
Company believes there is a growing trend at retail malls to retrofit and
upgrade food courts to emphasize fast food as one of the emerging focal points
of malls. The Company further believes that lunchtime diners who visit retail
shopping malls seek high quality, quick service meals in a food court setting
and that the premium quality of its brick oven pizza should position it to
compete effectively and efficiently in food court locations.
Although the Company believes that its expansion strategy is feasible,
there can be no assurance that the Company will expand at the rate currently
planned, that expansion will not be more costly than anticipated, or that
current and future sites will operate profitably. The specific rate at which the
Company is able to open new restaurants will be determined by many factors, some
of which are beyond the control of the Company, including its success in
identifying satisfactory sites, negotiating satisfactory leases, securing
requisite governmental permits and approvals, obtaining adequate financing and
recruiting and training management personnel. See "Risk Factors - Risk of
Expansion."
Restaurant Operations
The Company invests substantial time and effort in its training programs
which focus on all aspects of restaurant operations, including kitchen, bar and
dining room operations, food quality and preparation, alcoholic beverage
service, liquor liability avoidance, customer service and employee relations.
The Company holds regular meeting of its managers which cover new products,
continuing training and other aspects of business management. Managers also
attend seminars which are periodically conducted by Company personnel and
outside experts on a broad range of topics.
New employees are trained by experienced employees who have demonstrated
their ability to implement the Company's commitment to provide high quality food
and attentive service. The Company has developed manuals regarding its policies
and procedures for restaurant operations. Senior management regularly visits
Company restaurants and meets with the respective management teams to ensure
compliance with the Company's strategies and standards of quality in all aspects
of restaurant operation and personnel development.
The Company seeks to attract and retain high caliber restaurant managers by
providing them with an appropriate balance of autonomy and direction. Annual
performance objectives and budgets for each restaurant are jointly determined by
restaurant managers and senior management. To provide incentives, the Company
has a cash bonus program tied to achievement of specified objectives.
The staff for a typical Pizzeria Regina restaurant consists of one general
manager, two managers and approximately 12 to 25 hourly employees. The staff for
a typical Polcari's North End restaurant consists of one general manager, two
managers, one working chef and approximately 40 to 60 hourly employees. Most of
the Company's hourly employees are part-time personnel. The general manager of
each restaurant is primarily responsible for the day-to-day operations of the
entire restaurant and maintaining standards of quality and performance
established by the Company.
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The Company believes centralized financial and management controls are
fundamental to improving operating margins. These controls are maintained
through the use of an automated data processing system and prescribed reporting
procedures. Each restaurant has a point-of-sale system that captures restaurant
operating information. The restaurants forward daily sales reports, vendor
invoices, payroll information and other data to the Company's corporate
headquarters. Company management utilizes this data to monitor central costs and
sales mix and to prepare periodic financial management reports. This system is
also used for budget analysis, planning and determining menu composition.
Restaurant managers perform daily inventories of key supplies. All other
supplies are inventoried weekly at the Pizzeria Regina restaurants and
inventoried monthly at the Polcari's North End restaurant. Cash is controlled
through deposits of sales proceeds in local operating accounts following each
restaurant shift with respect to the Pizzeria Regina locations and following
each business day with respect to Polcari's North End location. The balances in
these accounts are wire transferred daily to the Company's principal operating
account.
Purchasing and Commissary Operations
The Company maintains a commissary from which food products such as pizza
dough, bread dough and full line of desserts are produced for the Company's
restaurants. These products require a high degree of consistency that would be
more difficult to maintain at the individual restaurant locations. The Company
believes that close, centralized monitoring of the dough preparation ensures a
consistent premium product. All other food preparation is prepared on site at
the restaurant level.
The Company negotiates on a centralized basis directly with wholesale
suppliers of high volume food ingredients such as cheese, tomato sauce and flour
to ensure consistent quality and freshness of products across its restaurants
and to obtain competitive pricing. The ingredients are then purchased by the
Company's distributor at the negotiated price and redistributed to the Company's
restaurants. All other food ingredients and beverage products are purchased
according to Company specifications by the general manager of each restaurant.
The Company is not materially dependent upon any of its suppliers.
Site Selection
The Company considers the specific location of a restaurant to be critical
to the restaurant's long term success and devotes significant time and resources
to the investigation and evaluation of each prospective site. Local market
demographics, population density, average household income levels and site
characteristics such as visibility, accessibility and traffic volume are
considered.
Potential sites for the Pizzeria Regina restaurants are generally sought
within high-traffic food courts or retail shopping malls located in metropolitan
areas. The Company also considers existing local competition and, to the extent
such information is available, the sales of other comparably priced restaurants
opening in the area. The Company has a real estate consulting contract with
Joseph Hopkins to identify and secure future sites.
Franchising
BRAI has formed a wholly owned subsidiary ("BRAII") for the purpose of
offering Pizzeria Regina franchise opportunities both domestically and
internationally. BRAII has filed a Uniform Franchise Offering Circular in
Connecticut, Florida, Kentucky and Pennsylvania, and is actively seeking
franchisees with operational experience.
In addition, the Company has recently entered into an International
Development Agreement with Regina International, a corporation controlled by a
Company director, to pursue and develop franchise territories outside the
Americas, anticipated to be principally in Europe, the Far East and the Pacific
Rim. Under that agreement, which has an initial term of 5 1/2 years, Regina
International agrees to use its best efforts to market and promote the Company's
franchise system within its development territory and to sell a minimum number
of franchises during the initial term. The Company is obligated to pay Regina
International a development fee of $7,000 per month for the 60 months of the
agreement. This monthly fee accrues but is not payable until the month following
the month in which BRAII's positive cash flow equals or exceeds $7,000 after
payment of all accrued but unpaid direct costs and expenses incurred in
connection with marketing and promotion of the Company's franchise system, and
is payable thereafter only to the extent there continues to be positive
20
<PAGE>
cash flow. The Company will expense the monthly fee as incurred, regardless of
when payment is required to be made. BRAII must pay Regina International a
royalty of 40% of the excess of gross revenues from Regina International's
activities over the expenses incurred by either BRAII or Regina International in
the marketing and promotion of the Company's franchise system within the
development area, with the royalty percentage subject to adjustment based upon
the ratio of revenues to expenses. Either party has the right to seek
renegotiation of the agreement upon 180 days written notice at the end of the
term, and if they cannot reach agreement upon mutually agreeable terms, each has
the right to buy out the balance of the agreement's term for a one-time buy out
fee equal to the excess of the revenues of BRAII over the marketing and
promotional expenses referred to above for the five year period preceding the
buy out. The buy out fee is payable by the Company in cash or its common stock,
subject to certain requirements. See "Risk Factors - Franchising" and "Recent
Developments."
Seasonality
The Company's restaurants are subject to seasonal fluctuations in sales
volume. Sales at the Pizzeria Regina restaurants are typically higher in June
through August and in November and December due to increased volume in shopping
malls during the holiday and tourist seasons and school vacations.
Employees
As of January 25, 1998, the Company had approximately 240 employees, of
whom 14 were corporate and administrative personnel, 29 were field supervision
or restaurant managers or management trainees, and the remainder were hourly
restaurant personnel. Many of the Company's hourly employees work part-time. The
Company believes that its relationships with its employees are good. None of the
Company's employees are covered by a collective bargaining agreement.
Target Markets
The Company's target market for the Pizzeria Regina restaurants is very
broad, consisting of individuals and families who seek fast service and
high-value-to-price meals during the lunch period. The target markets for the
Polcari's North End restaurants are adults and families who seek high quality
brick oven pizza and other moderately priced Italian dinner entrees in a
comfortable environment. The Company believes that its focus on premium quality,
service and value is the most effective approach to attracting customers.
The Company anticipates that it will obtain greater name recognition due to
the increase in distribution channels for its premium Pizzeria Regina brick oven
pizza through the development of additional Pizzeria Regina food court kiosks.
Competition
The restaurant industry is highly competitive with respect to location,
menu selection and quality, prices, service and decor. The business is affected
by changes in tastes and eating habits of the public and by changes in local,
regional or national economic conditions, demographic trends and traffic
patterns, factors affecting consumers' disposable income and spending habits and
the types, number and location of competing restaurants. See "Risk Factors -
Risks of Restaurant Industry."
The Pizzeria Regina restaurants compete with other fast-service, high
volume food providers on the basis of price, value, location, and speed of
service. The Polcari's North End restaurant will compete with other casual, full
service restaurants primarily on the basis of menu selection, quality, price,
service, ambiance and location. Many competitors of the Company's restaurants
are either locally owned or part of national or regional restaurant chains, many
of which are well established and have substantially greater financial and other
resources than the Company. The Company believes that it will be able to compete
effectively in each of its markets. See "Risk Factors - Competition."
Trademarks
The Company regards it service marks as having significant value and as
being an important factor in the marketing of its products. Its most significant
marks include "Pizzeria Regina", "Regina", its crown design logo,
21
<PAGE>
and "Polcari's". These marks, which appear in its advertisements, menus and
elsewhere, are widely recognized in the Boston restaurant market.
"Pizzeria Regina" and the crown design are a registered trademark of the
Company. The Company has applied with the United States Patent and Trademark
Office to register the crown design logo, the "Polcari's" logo, "Polcari's North
End" and the "Regina" service marks.
Government Regulation
The Company is subject to a variety of federal, state and local laws and
regulations. Each of the Company's restaurants is subject to licensing and
regulation by a number of government authorities, including alcoholic beverage
control, health, safety, sanitation, building and fire agencies in the state or
municipality in which the restaurant is located. Difficulties in obtaining or
failure to obtain required licenses or approvals could delay or prevent the
development of a new restaurant in a particular area. The Company has not
experienced any material violations or citations, and the Company to date has
not experienced delays of more than 30 days in obtaining such licenses. See
"Risk Factors - Government Regulation."
The Company is subject to "dram shop" statues, which generally provide a
person injured by an intoxicated person the right to recover damages from an
establishment that wrongfully served alcoholic beverages to the intoxicated
person. See "Risk Factors - Dram Shop Liability."
The Company's restaurant operations are also subject to federal and state
laws governing such matters as the proposed government mandated health
insurance, over which the Company has no control. Significant numbers of the
Company's service, food preparation and other personnel are paid at rates
related to the federal minimum wage, and increases in the minimum wage could
increase the Company's labor costs. The development and construction of
additional restaurants will be subject to compliance with applicable zoning,
land use and environmental laws and regulations. See "Risk Factors - Government
Regulation."
Properties
All the Company's existing restaurants are located in leased space, except
for the North End Pizzeria Regina location, which is owned by the Company. All
of the Company's leases provide for a minimum annual rent, and most call for
additional rent based on sales volume at the particular location over a
specified minimum level. Generally, these leases are net leases, which require
the Company to pay the cost of insurance, taxes and a portion of the lessor's
operating costs. Certain mall locations also require the Company to participate
in upkeep of common areas and promotional activities.
On December 31, 1997 the Company terminated a lease in Lexington,
Massachusetts and transferred its liquor license with respect to a Bel Canto's
Restaurant previously operated by the Company.
The Company occupies approximately 3,200 square feet of executive office
space at 999 Broadway, Saugus, Massachusetts, under a lease expiring on October
31, 2002. The Company also leases approximately 5,000 square feet of warehouse
space located in Somerville, Massachusetts under a lease expiring on July 31,
2001 (including all extension options that may be exercised by the Company in
its discretion) and approximately 2,741 square feet for its commissary located
in Charlestown, Massachusetts under a lease expiring on August 14, 1998.
22
<PAGE>
The following table sets forth certain information with respect to the
Company's restaurant properties:
<TABLE>
<CAPTION>
Lease Approx. Sq. ft. Seating Capacity Expiration Date Name/Type
----- --------------- ---------------- --------------- ---------
<S> <C> <C> <C> <C>
North End, 4,300 67 N/A Pizzeria Regina
Boston, MA (wait-service)
(Company-owned)
Faneuil Hall Marketplace 750 N/A 12/31/00 Pizzeria Regina
Boston, MA (upstairs) (food court)
Faneuil Hall Marketplace 2,000 75 12/31/98 Pizzeria Regina
Boston, MA (downstairs) (wait-service)
Burlington Mall 1,018 N/A 11/30/05 Pizzeria Regina
Burlington, MA (food court)
South Shore Plaza 700 N/A 2/28/06 Pizzeria Regina
Braintree,MA (food court)
Polcari's North End 12,000 326 11/30/12 Polcari's North End
Saugus, MA (Full-service restaurant)
Solomon Pond Mall 1,085 N/A 1/30/07 Pizzeria Regina
Marlborough, MA (food court)
Paramus Park 696 N/A 11/30/09 Pizzeria Regina
Paramus, NJ (food court)
Regency Square Mall 605 N/A 11/30/04 Pizzeria Regina
Richmond, VA (food court)
</TABLE>
Litigation
The Company is not a party to any material pending legal proceeding.
LEGAL MATTERS
The validity of the Rights and the underlying shares of Common Stock
offered hereby and certain other legal matters will be passed upon for the
Company by Brown, Rudnick, Freed & Gesmer, Boston, Massachusetts.
EXPERTS
The financial statements incorporated by reference in this Prospectus have
been audited by BDO Seidman, LLP, independent certified public accountants, to
the extent and for the periods set forth in their report incorporated herein by
reference and are incorporated herein in reliance upon such report given upon
the authority of said firm as experts in accounting and auditing.
23
<PAGE>
BOSTON RESTAURANT ASSOCIATES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
Twenty-six Weeks Ended
Oct 26 Oct 27
1997 1996
Cash flows provided by operating activities $309,014 $260,265
-------- --------
Cash flows from investing activities:
Capital expenditures ($505,282) ($675,738)
-------- --------
Cash flows used for investing activites ($505,282) ($675,738)
Cash flows from financing activities:
Repayments of long-term debt ($100,002) ($87,601)
Repayments of capital lease obligations ($14,851) $0
Repayments of stockholder loans ($2,102) ($1,991)
Repayment of subordinated debentures $0 ($68,666)
Proceeds from subordinated debentures $218,750 $0
Proceeds from long-term debt $0 $571,945
-------- --------
Cash flows provided by financing activities $101,795 $413,687
-------- --------
Increase (decrease) in cash and cash equivalents ($94,473) ($1,786)
Cash and cash equivalents at beginning of period $726,054 $159,564
-------- --------
Cash and cash equivalents at end of period $631,581 $157,778
======== ========
F-1
<PAGE>
BOSTON RESTAURANT ASSOCIATES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(unaudited)
<TABLE>
<CAPTION>
Thirteen Weeks Ended Twenty-six Weeks Ended
Oct 26 Oct 27 Oct 26 Oct 27
1997 1996 1997 1996
------ ------ ------ ------
<S> <C> <C> <C> <C>
Sales $2,989,820 $3,013,279 $5,835,705 $5,812,130
Cost of food and beverage $602,586 $691,563 $1,177,093 $1,350,978
Payroll $887,985 $929,774 $1,723,533 $1,787,576
Other operating expenses $1,029,288 $1,048,854 $1,939,639 $1,910,248
General and administrative $347,277 $263,624 $745,426 $588,038
---------- ---------- ---------- ----------
Income from operations $122,684 $79,374 $250,014 $175,290
Other (income) ($1,594) ($912) ($2,521) ($2,304)
Interest (income) ($5,902) $0 ($15,001) $0
Interest expense $77,503 $33,752 $149,027 $54,798
---------- ---------- ---------- ----------
Net Income $52,677 $46,534 $118,509 $122,796
========== ========== ========== ==========
Income per share $0.01 $0.01 $0.02 $0.02
========== ========== ========== ==========
Weighted average number of
common shares outstanding 5,015,693 5,015,293 5,015,693 5,015,293
========== ========== ========== ==========
</TABLE>
F-2
<PAGE>
BOSTON RESTAURANT ASSOCIATES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(unaudited)
Oct 26 April 27
1997 1997
ASSETS
Current:
Cash and cash equivalents $631,581 $726,054
Accounts receivable $132,707 $69,729
Inventories $214,996 $209,295
Prepaid expensees and other $39,559 $27,532
---------- ----------
Total current assets $1,018,843 $1,032,610
Net property and equipment $2,595,290 $2,656,328
Other assets $1,286,833 $944,180
---------- ----------
Total assets $4,900,966 $4,633,118
========== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $401,934 $382,294
Accrued liabilities $634,264 $628,277
Current maturities:
Notes payable-stockholder $4,394 $4,261
Long-term debt $200,000 $200,000
Obligations under capital leases $33,237 $30,850
---------- ----------
Total current liabilities $1,273,829 $1,245,682
Long-term obligations:
Notes payable-stockholder, less
current maturities $123,576 $125,810
Long-term debt, less current maturities $524,998 $625,000
Obligations under capital leases,
less current maturities $121,612 $138,850
Subordinated debentures $1,337,500 $1,118,750
Deferred rent $70,081 $67,024
---------- ----------
Total liabilities $3,451,596 $3,321,116
Stockholders' equity
Common stock, $.01 par value, 25,000,000
shares authorized, 5,105,693 shares issued $50,157 $50,157
Additional paid in capital $9,062,058 $9,043,199
Accumulated deficit ($7,662,845) ($7,781,354)
---------- ----------
Total stockholders' equity $1,449,370 $1,312,002
Total liabilities and stockholders' equity $4,900,966 $4,633,118
========== ==========
F-3
<PAGE>
EXHIBIT A
---------
BOSTON RESTAURANT ASSOCIATES, INC.
FORM 10-KSB FOR PERIOD ENDING APRIL 27, 1997
<PAGE>
Exhibit A
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-KSB
(Mark One)
[x] Annual report under Section 13 or 15(d) of the Securities Exchange Act
of 1934.
For the fiscal year ended April 27, 1997. (No Fee required)
[ ] Transition report under Section 13 or 15(d) of the Securities Exchange
Act of 1934(No fee required)
For the transition period from ________ to ________.
Commission File Number
0-18369
BOSTON RESTAURANT ASSOCIATES, INC.
----------------------------------
(Name of Small Business Issuer as Specified in its Charter)
Delaware 61-1162263
-------- ----------
(State or Other (I.R.S. Employer
Jurisdiction of Identification No.)
Incorporation or
Organization)
999 Broadway, Suite 400
Saugus, Massachusetts (617)231-7575 01906
- -------------------- ------------- -----
(Address of Principal (Issuer's Telephone Number (Zip Code)
Executive Offices) Including Area Code)
Securities registered pursuant to Section 12(b) of the Securities Exchange Act
of 1934:
Name of Each Exchange
Title of Each Class on Which Registered
- ------------------- -----------------------
Common stock, $.01 par value per share
Redeemable Common Stock Purchase Warrants Boston Stock Exchange
Securities registered under Section 12(g) of the Securities Exchange
Act of 1934:
Common Stock, $.01 par value per share
--------------------------------------
(Title of Class)
Redeemable Common Stock
Purchase Warrants
-----------------
(Title of Class)
Check whether the issuer: (1)filed all reports required to be filed by
Section 13 or 15(d) of the Exchange act during the past 12 months (or such
shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days. Yes x No _
1
<PAGE>
Check if disclosures of delinquent filers in response to Item 405 of
Regulation S-B is not contained in this form, and no disclosure will be
contained, to the best of the registrant's knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form 10-KSB
or any amendments to this Form 10-KSB. [ ]
The issuer's revenues for its most recent fiscal year were $11,410,886.
The aggregate market value of registrant's Common Stock, $.01 par value per
share, held by non-affiliates of the registrant as of July 25, 1997 was
$4,687,928 based upon the average closing bid and asked prices of such stock on
that date as reported on the NASDAQ Small-Cap Market on that date. As of July
25, 1997 there were 5,015,693 shares of the registrant's Common Stock, $.01 par
value per share outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the registrant's Proxy Statement involving the election of
directors, which is expected to be filed within 120 days after the end of the
registrant's fiscal year, are incorporated by reference in Part III of this
Report.
2
<PAGE>
PART I
- ------
ITEM 1. BUSINESS
- -----------------
General
Boston Restaurant Associates, Inc. (the "Company") owns and operates a
chain of eight pizzerias under the name Pizzeria Regina(R) and two full service
restaurants in the Boston, Massachusetts metropolitan area. The Company's
primary full service restaurant is based upon the Polcari's North End(TM)
Italian/American, family style restaurant concept and is operated under the name
Polcari's North EndTM. The Company's other full service restaurant is operated
under the name Bel Canto(R).
Founded in 1926, the original Pizzeria Regina restaurant has served its
signature Neapolitan style, thin crust pizza, prepared in gas-fired brick ovens,
for more than 65 years. The Company believes that the Pizzeria Regina pizza and
brand name are local symbols of superior and distinctive pizza. These
restaurants are fast service, high volume pizzerias that feature premium brick
oven pizza. Of the eight Pizzeria Regina restaurants, five are food court kiosks
(self-service, take-out style emphasizing pizza slices with common area
seating), one is a self-service restaurant (food court style with broader menu
selections including pasta and submarine sandwiches and in-restaurant seating),
and two are wait-service restaurants (full-service style emphasizing whole
pizzas with in-restaurant seating). See "Pizzeria Regina Restaurants."
The Polcari's North End restaurant concept seeks to create an
Italian/American, family-style, casual dining ambiance that captures the
community spirit of the 1940's and 1950's in Boston's Italian North End
neighborhood. The Company's Polcari's North End restaurant highlights exposed
gas-fired brick ovens in open view of diners. In addition, memorabilia and
photographs depicting 1940 and 1950 scenes in Boston's North End are used to
create a neighborhood atmosphere rich with history. The restaurant also features
large tables of six or more seats to encourage family style dining and a
value-oriented menu that includes branded Pizzeria Regina pizza, large
Italian/American pasta dishes, and fresh baked breads. See "Polcari's North End
Restaurant."
The Company's Bel Canto full service restaurant is a moderately priced
casual dining Italian style restaurant.
3
<PAGE>
In April 1994, the stockholders of Pizzeria Regina, Inc. ("PRI") acquired a
60% interest in Capucino's, Inc. (the "Capucino's Acquisition"), which was then
operating four Capucino's restaurants (one of which has been converted into a
Polcari's North End restaurant, and three of which have been closed). The
Company's Bel Canto restaurant was acquired by the Company in 1991. See "Bel
Canto and Capucino's Restaurants" and "Capucino's Acquisition."
The Company plans to expand its operations by opening additional Pizzeria
Regina food court kiosks in high volume retail malls as the opportunities
present themselves. The expansion of the Polcari's North End concept will be
dependent upon market opportunities and the Company's overall financial and
management resources. The specific rate at which the Company is able to open new
restaurants will be determined by many factors, including the Company's success
in obtaining adequate financing, identifying satisfactory sites, negotiating
satisfactory leases, securing requisite governmental permits and approvals, and
training management personnel. There can be no assurance that the Company will
have the resources to expand that expansion will not be more costly than
anticipated or that current and future sites will operate profitably.
The Company's principal offices are located at 999 Broadway, Saugus,
Massachusetts 01906 and its telephone number is (617)231-7575. As used in this
Report, unless otherwise indicated, the term Company refers to Boston Restaurant
Associates, Inc. and its subsidiaries (including PRI). All references to
Capucino's Inc. in this Report refer to the Company prior to the Capucino's
Acquisition. All references to PRI in this Report refer to Pizzeria Regina, Inc.
which became a wholly-owned subsidiary of the Company in connection with the
Capucino's Acquisition but which was prior to that time, an independently
privately owned entity.
Pizzeria Regina Restaurants
The Company's signature product, its premium Neapolitan style, thin crust,
brick oven pizza, features a proprietary dough and pizza sauce and whole-milk
mozzarella cheese, which the Company believes combine to produce a distinct
flavor and superior pizza. These pizzas are offered with a wide variety of fresh
vegetable and cured meat toppings. By baking its pizza in gas-fired brick ovens,
at very high temperatures for short periods of time, the Company is able to
produce a light, evenly cooked crust while preserving the flavor and moisture of
the
4
<PAGE>
toppings. In addition, the speed of the baking process enables the Company
to provide fast service and cater to high volume. The Company believes that the
quality of its pizza resulting from its proprietary ingredients and baking
process should enable it to appeal to both the lunch and dinner markets.
The original Pizzeria Regina located in Boston's historic North End has
served the Company's premium brick oven pizza since 1926. Since the purchase of
this restaurant in 1946 by John B. Polcari, Sr., three generations of the
Polcari family have developed and refined the Pizzeria Regina product to produce
what the Company believes is a widely recognized local symbol of premium quality
pizza.
The eight Pizzeria Regina restaurants currently operated by the Company are
located in the Boston metropolitan area. These restaurants are fast service,
high volume pizzerias that feature premium pizza and cater primarily to the
lunchtime diner with the exception of the original North End location, which
services both the lunch and dinner markets. Of these eight restaurants, five are
food court kiosks (self-service, take-out style emphasizing pizza slices with
common area seating), one is a self-service restaurant (food court style with
broader menu selections including pasta and submarine sandwiches and
in-restaurant seating), and two are wait-service restaurants (full-service style
emphasizing whole pizzas with in-restaurant seating).
The Company intends to open additional Pizzeria Regina food court kiosks
primarily in retail malls within metropolitan areas in Massachusetts and other
states. The Company currently operates five food court kiosks located in the
Quincy Market/Fanueil Hall Marketplace on the Boston, Massachusetts waterfront,
and Longwood Medical Center, also in Boston; South Shore Plaza, Braintree,
Massachusetts; Solomon Pond Mall, Berlin/Marlborough Massachusetts; and the
Burlington Mall in Burlington, Massachusetts. The food court kiosks primarily
serve pizza slices with multiple topping choices and operate side-by-side with
other fast food vendors. Menu items are presented in a self-service, take-out
style designed to allow customers to order, pay for and consume their food in a
very short period of time. Customers who desire to sit down after purchasing
their food may join customers of other food court vendors in one or more
designated common areas within the mall. The focused menu, self-service,
take-out style and common seating provide food court customers with a fast
dining, low cost alternative relative to more traditional full service
restaurants.
Based on the Company's experience and articles from trade
5
<PAGE>
journals, the Company believes there is a trend at retail malls to retrofit
and upgrade food courts to emphasize fast food as one of the emerging focal
points of malls. The Company further believes that lunchtime diners who visit
retail shopping malls seek high quality, quick service meals in a food court
setting, and that the premium quality of its brick oven pizza should position it
to compete effectively in food court locations.
The Burlington Mall food court kiosk represented the first
of the Company's planned kiosk expansion, having been opened by the Company in
November 1994 upon the completion of the renovation of the food court in that
mall. The Company further expanded its food court kiosk operations with the
addition of kiosks in the Solomon Pond Mall in Marlborough, Massachusetts, and
the South Shore Plaza Mall in Braintree, Massachusetts. The food courts in the
Solomon Pond Mall and the South Shore Plaza Mall both opened in the beginning of
August, 1996. Management currently estimates that the cost of opening a typical
food court kiosk is approximately $350,000 to $400,000. There can be no
assurance that the Company will be able to obtain financing necessary to
construct additional food courts kiosks, that the Company will be able to
complete the construction of new kiosks on a timely basis and within budget, if
at all, or that the Company will be able to operate these kiosks successfully.
The Company has preliminarily identified other potential site locations that it
believes will become available during the next 24 months.
Two of the Company's Pizzeria Regina restaurants (a food court kiosk
and a wait-service restaurant), both of which are located in the Quincy
Market/Faneuil Hall Marketplace in Boston, Massachusetts, had leases that
expired on December 31, 1995. The Company entered into a new food court kiosk
lease on 1 January, 1996, which is the more successful of the two restaurants,
that runs through December 2000. The Company anticipates closing the
wait-service restaurant at the termination of the lease on or before December
31, 1997 at which time it will seek to enter into a lease for additional space
for a full service restaurant in the Quincy Market/Faneuil Hall Marketplace.
While there can be no assurance in this regard, the Company believes, based upon
communications with the landlord of this location, that it will be able to
successfully negotiate a new lease for a wait service location.
6
<PAGE>
Polcari's North End Restaurant
The Company's Polcari's North End restaurant concept is designed to create
an Italian/American, family-style, casual dining ambiance that captures the
community spirit of the 1940's and 1950's in Boston's Italian North End
neighborhood. The Company's first Polcari's North End restaurant highlights
exposed gas-fired brick ovens in open view of diners. In addition, memorabilia
and photographs depicting 1940 and 1950 scenes in Boston's North End are used to
create a neighborhood atmosphere rich with history. The restaurant also features
large tables of six or more seats to encourage family style dining and a
value-oriented menu that includes branded Pizzeria Regina pizza, large
Italian/American pasta dishes and fresh baked breads.
In 1909, John B. Polcari, Sr., the patriarch of the Polcari family, opened
a neighborhood Italian groceria opposite the original North End Pizzeria Regina.
In 1946, he purchased this Pizzeria Regina. Mr. Polcari's son, John P. Polcari,
Jr., later operated Polcari's Restaurant, a well-known North End restaurant for
more than 30 years prior to its closure in 1989. Management believes that the
Polcari name evokes the Bostonian's image of immigrant, Italian/American food.
In March 1995, the Company opened its first Polcari's North End restaurant
in Saugus, Massachusetts by converting its existing Capucino's restaurant at the
same location. In 1997 the lounge area was expanded. The Company may in the
future review opportunities to open additional Polcari's North End restaurants.
Such expansion will be dependent upon market opportunities and the Company's
overall financial and management resources.
Bel Canto and Capucino's Restaurants
The Company operates one full service casual dining moderately priced
Italian style restaurant under the name Bel Canto. The Bel Canto Restaurant is
located in Lexington, Massachusetts. The Company introduced Pizzeria Regina
pizza in its Lexington Bel Canto restaurant in January 1995.
In furtherance of shifting the Company's full service restaurant efforts
away from the Capucino's and Bel Canto(R) concepts the Company has, as detailed
below, converted, closed, or sold all of these restaurants other than its
remaining Lexington Bel Canto.
The Company completed the conversion of its Brookline, Massachusetts
Capucino's restaurant into a full service Pizzeria Regina in February 1996 and
subsequently closed the restaurant in May 1997 at the termination of the
existing lease due to the
7
<PAGE>
inability to negotiate a new lease at a favorable rent. The Saugus,
Massachusetts Capucino's restaurant was converted into a Polcari's North End
restaurant in March 1995. See "Pizzeria Regina Restaurants" and "Polcari's North
End Restaurants." The Company closed its Capucino's restaurant in Framingham,
Massachusetts in June 1995 with the intention of converting it into a Polcari's
North End restaurant. The conversion of this location was delayed while the
Company refined the Polcari's North End concept in the Saugus location. The
Company subsequently determined that it would be in its best interest to sell
the restaurant and completed the sale in April of 1997.
Restaurant Operations
The Company invests substantial time and effort in its training programs
which focus on all aspects of restaurant operations, including kitchen, bar and
dining room operations, food quality and preparation, alcoholic beverage
service, liquor liability avoidance, customer service and employee relations.
The Company holds regular meetings of its managers, which cover new products,
continuing training and other aspects of business management. Managers also
attend seminars, which are periodically conducted by Company personnel and
outside experts, on a broad range of topics.
New employees are trained by experienced employees who have demonstrated
their ability to implement the Company's commitment to provide high quality food
and attentive service. The Company has developed manuals regarding its policies
and procedures for restaurant operations. Senior management regularly visits
Company restaurants and meets with the respective management teams to ensure
compliance with the Company's strategies and standards of quality in all
respects of restaurant operations and personnel development.
The Company seeks to attract and retain high caliber restaurant managers by
providing them with an appropriate balance of autonomy and direction. Annual
performance objectives and budgets for each restaurant are jointly determined by
restaurant managers and senior management. To provide incentives, the Company
has a cash bonus program tied to achievement of specified objectives.
The staff for a typical Pizzeria Regina restaurant consists of one general
manager, two managers and approximately 12 to 25 hourly employees. The staff for
a Polcari's North End restaurant consists of one general manager, two managers,
one kitchen manager and approximately 40 to 60 hourly employees. Most of the
8
<PAGE>
Company's hourly employees are part-time personnel. The general manager of each
restaurant is primarily responsible for the day-to-day operations of the entire
restaurant and maintaining standards of quality and performance established by
the Company.
The Company believes centralized financial and management controls are
fundamental to improving operating margins. These controls are maintained
through the use of an automated data processing system and prescribed reporting
procedures. Each restaurant has a point-of-sale system that captures restaurant
operating information. The restaurants forward daily sales reports, vendor
invoices, payroll information and other data to the Company's corporate
headquarters. Company management utilizes this data to centrally monitor costs,
sales mix and to prepare periodic financial management reports. This system is
also used for budget analysis, planning and determining menu composition.
Restaurant managers perform daily inventories of key supplies. All other
supplies are inventoried weekly at the Pizzeria Regina restaurants and are
inventoried biweekly at the Polcari's North End and Bel Canto restaurants. Cash
is controlled through deposits of sale proceeds in local operating accounts
following each restaurant shift with respect to the Pizzeria Regina and Bel
Canto locations and following each business day with respect to Polcari's North
End location, the balances of which are wire transferred daily to the Company's
principal operating account.
Purchasing and Commissary Operations
The Company maintains a commissary from which food products such as pizza
dough, bread dough and a full line of desserts are produced for the Company's
restaurants. These products require a high degree of consistency that would be
more difficult to maintain at the individual restaurant locations. The Company
believes that close and centralized monitoring of the dough preparation ensures
a consistent and premium product. All other food preparation is performed on
site at the restaurant level.
The Company negotiates on a centralized basis directly with wholesale
suppliers of high volume food ingredients such as cheese, tomato sauce, and
flour to ensure consistent quality and freshness of products across its
restaurants and to obtain competitive pricing. These ingredients are then
purchased by the Company's distributor at the negotiated price and redistributed
to the Company's restaurants. All other food ingredients and beverage products
are purchased directly by the general manager of each restaurant in accordance
with corporate guidelines. The
9
<PAGE>
Company believes that all essential food and beverage products are available
from many qualified wholesale suppliers.
Site Selection
The Company considers the specific location of a restaurant to be critical
to the restaurant's long term success and devotes significant time and resources
to the investigation and evaluation of each prospective site. Local market
demographics, population density, average household income levels and site
characteristics such as visibility, accessibility and traffic volume are
considered.
Potential sites for the Pizzeria Regina restaurants are generally sought
within high-traffic food courts or retail shopping malls located in metropolitan
areas. Factors which will favor a Polcari's North End restaurant site are its
proximity to high-volume, middle market traffic centers, such as retail and
residential areas with populations of at least 100,000 persons within a five
mile radius. For both types of restaurants, the Company also considers existing
local competition and, to the extent such information is available, the sales of
other comparably priced restaurants opening in the area.
Seasonality
The Company's restaurants are subject to seasonal fluctuations in sales
volume. Sales at the Pizzeria Regina restaurants are typically higher in June
through August and in November and December due to increased volume in shopping
malls during the holiday and tourist seasons and school vacations.
Sales volumes at the Company's full service restaurants are typically
higher in the fall and spring months. The Company attributes this to an influx
of the student population near the restaurants, which are located close to
colleges and moderate weather conditions during these seasons.
Employees
As of July 25, 1997, the Company had approximately 250 employees of whom 10
were corporate and administrative personnel, 33 were field supervision or
restaurant managers or management trainees, and the remainder was hourly
restaurant personnel. Many of the Company's hourly employees work part-time. The
Company believes that its relationship with its employees is good. None of the
Company's employees are covered by a collective bargaining agreement.
10
<PAGE>
Advertising and Marketing
The Company's target market for the Pizzeria Regina restaurants is very
broad, consisting of individuals and families who seek fast service and high
value-to-price meals during the lunch period. The target markets for the
Polcari's North End restaurant are adults and families who seek high quality
brick oven pizza and other moderately priced Italian dinner entrees, in a
comfortable environment. The Company believes that its focus on premium quality,
service and value is the most effective approach to attracting customers.
The Company anticipates that it will obtain greater name recognition due to
the increase in distribution channels for its premium Pizzeria Regina brick oven
pizza through the development of additional Pizzeria Regina food court kiosks.
In addition, management believes that the centralization of its restaurants
within the greater Boston and neighboring areas will enable the Polcari's North
End restaurant to benefit from the recognition of the Pizzeria Regina and
Polcari names. The Company plans to rely upon local advertising, high-volume
traffic flow at retail malls, and word of mouth exposure.
Capucino's Acquisition
Pursuant to the Capucino's Acquisition, the Company, then known as
Capucino's, Inc., purchased all of the capital stock of PRI, then known as
Boston Restaurant Associates, Inc., from George R. Chapdelaine, John P. Polcari,
Jr., Anthony Polcari, Mary Polcari, BayBank as trustee of the Anthony A. Polcari
Irrevocable Trust, and Lucille Salhany Polcari, the former stockholders of PRI,
in exchange for 1,382,588 shares of Capucino's, Inc. Common Stock. Prior to the
Capucino's Acquisition, Capucino's, Inc. and PRI had no affiliation and PRI was
a privately held entity.
Capucino's Inc. was incorporated in May 1989. In March 1990 Capucino's,
Inc. conducted a public offering of its securities and at all times since March
1990, the Company's Common Stock has traded on the NASDAQ Small-Cap Market.
The Polcari family purchased the original Pizzeria Regina restaurant in
1946 and incorporated under the name Boston Restaurant Associates, Inc. in 1986.
In 1991, PRI acquired the assets of the Bel Canto restaurants through its wholly
owned subsidiary Bel Canto Restaurants, Inc.
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<PAGE>
At the time of the Capucino's Acquisition, Capucino's, Inc. owned and
operated four full service, casual dining restaurants and PRI owned and operated
a chain of six pizzerias under the name Pizzeria Regina and two Bel Canto casual
dining restaurants, all in the Boston, Massachusetts metropolitan area.
In connection with the Capucino's Acquisition, the management of PRI
assumed similar positions with the Company. As a result of the Capucino's
Acquisition, George R. Chapdelaine and John P. Polcari, Jr., as the Voting
Trustees of a Voting Trust that holds substantially all of the Common Stock
acquired by the former PRI stockholders, became the largest stockholders of the
Company. No stockholder of Capucino's, Inc. prior to the Capucino's Acquisition
continued to own 5% or more of the outstanding Common Stock after the
acquisition.
Following the Capucino's Acquisition, Capucino's, Inc. assumed the name
Boston Restaurant Associates, Inc., effected a one-for-ten reverse stock split
and changed the NASDAQ Small-Cap market symbol for its Common Stock from CINO to
BRAI. In addition, PRI changed its name from Boston Restaurant Associates, Inc.
to Pizzeria Regina, Inc.
Competition
The restaurant industry is highly competitive with respect to location,
menu selection and quality, prices, service and decor. The business is affected
by changes in tastes and eating habits of the public and by changes in local,
regional or national economic conditions, demographic trends and traffic
patterns, factors affecting consumers' disposable income and spending habits and
the types, number and location of competing restaurants.
The Pizzeria Regina restaurants compete with other fast-service, high
volume food providers on the basis of the price, value, relationship, location,
and speed of service. The Polcari's North End restaurant competes with other
casual, full service restaurants primarily on the basis of menu selection,
quality, price, service, ambiance and location. Many competitors of the
Company's restaurants are either locally owned or part of national or regional
restaurant chains, many of which are well established and have substantially
greater financial and other resources than the Company.
Trademarks
The Company regards its service marks as having significant
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<PAGE>
value and as being an important factor in the marketing of its products.
Its most significant marks include "Pizzeria Regina", "Regina", its crown design
logo, and "Polcari's". These marks, which appear in its advertisements, menus
and elsewhere, are widely recognized in the Boston restaurant market.
"Pizzeria Regina" and the crown design logo are registered trademarks of
the Company. The Company has applied with the United States Patent and Trademark
Office to register the "Polcari's" logo, "Polcari's North End" and the Regina
service marks. Regina on Tap is a trademark of the Company.
Government Regulation
The Company is subject to a variety of federal, state and local laws and
regulations. Each of the Company's restaurants is subject to licensing and
regulation by a number of government authorities, including alcoholic beverage
control, health, safety, sanitation, building and fire agencies in the state or
municipality in which the restaurant is located. Difficulties in obtaining or
failure to obtain required licenses or approvals could delay or prevent the
development of a new restaurant in a particular area.
A significant portion of the Company's revenues at the Polcari's North End,
Bel Canto, and the original Pizzeria Regina is attributable to the sale of
alcoholic beverages. Alcoholic beverage control regulations require each of the
Company's restaurants which serve alcohol to apply to a state authority and
municipal authorities for a license or permit to sell alcoholic beverages on the
premises. Typically, licenses must be renewed annually and may be revoked or
suspended for cause at any time. Alcoholic beverage control regulations relate
to numerous aspects of restaurant operations, including minimum age of patrons
and employees, hours of operation, advertising, wholesale purchasing, inventory
control and handling, storage and dispensing of alcoholic beverages. The failure
of the Company to obtain or retain liquor or food service licenses could have a
material adverse affect on the particular restaurant's operations and the
business of the Company generally.
The Company is subject to "dram shop" statutes, which generally provide a
person injured by an intoxicated person the right to recover damages from an
establishment that wrongfully served alcoholic beverages to the intoxicated
person. The Company presently carries liquor liability coverage for its
restaurants of $1,000,000, as well as excess liability coverage,
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<PAGE>
of $10,000,000 per occurrence, with a $10,000 deductible. The Company has never
been named as a defendant in a lawsuit involving "dram shop" liability.
The Company's restaurant operations are all subject to federal and state
laws governing such matters as the proposed government mandated health
insurance, over which the Company has no control. Significant numbers of the
Company's service, food preparation and other personnel are paid at rates
related to the federal minimum wage, and increases in the minimum wage could
increase the Company's labor costs.
The development and construction of additional restaurants will be subject
to compliance with applicable zoning, land use and environmental laws and
regulations.
ITEM 2. DESCRIPTION OF PROPERTY
- ------- -----------------------
All of the Company's existing restaurants are located in leased space in
the Boston, Massachusetts metropolitan area except for the North End Pizzeria
Regina location which is owned by the Company. All of the Company's leases
provide for a minimum annual rent, and most call for additional rent based on
sales volume at the particular location over a specified minimum level.
Generally, these leases are net leases which require the Company to pay the cost
of insurance, taxes and a portion of the lessor's operating costs. Certain mall
locations also require the Company to participate in upkeep of common areas and
promotional activities.
The following table sets forth certain information with respect to the
Company's restaurant properties:
<TABLE>
<CAPTION>
Lease Approx. Seating Expiration
Location Sq. Ft. Capacity Date Name/Type
- -------- ------- -------- ---------- ---------
<S> <C> <C> <C> <C>
North End, Boston (1) 4,300 67 NA Pizzeria Regina
(wait-service)
Faneuil Hall Marketplace(2) 750 NA 12/31/00 Pizzeria Regina
Boston (Upstairs) (food court)
Faneuil Hall Marketplace(3) 2,000 75 12/31/97 Pizzeria Regina
Boston (Downstairs) (wait-service)
Longwood Medical Center (2) 650 NA 1/31/98 Pizzeria Regina
Boston (food court)
Burlington Mall 3,000 100 4/30/99 Pizzeria Regina
Burlington (self-service)
Burlington Mall(2) 1,018 NA 11/30/05 Pizzeria Regina
Burlington (food court)
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<PAGE>
South Shore Plaza (2)(5) 700 NA 2/28/06 Pizzeria Regina
Braintree (food court)
Lexington 3,850 160 11/14/98 Bel Canto
Solomon Pond Mall(2)(5) 1,085 NA 1/30/07 Pizzeria Regina
Marlborough (food court)
Saugus(6) 11,000 400 11/30/12 Polcari's
North End
</TABLE>
- --------------
(1) Company-owned. This property is subject to a mortgage in favor of Haymarket
Co-Operative Bank. See "Management's Discussion And Analysis Or Plan Of
Operation -- Liquidity and Capital Resources" Includes approximately 1,000
square feet located in two adjacent condominiums owned by the Company which have
not been built-out as of the date of this Report.
(2) Food court locations have no independent seating capacity. Seating is
centralized in the common areas of the food courts.
(3) The Company is currently in negotiations for a new wait service location
within the marketplace.
(5) The Solomon Pond Mall and South Shore Plaza Mall food courts opened in
August 1996.
(6) Includes 30 seats located outdoors which are used weather permitting.
(7) The expiration date anticipates the Company exercise all of its extension
options that may be exercised by the Company in its discretion.
The Company occupies approximately 3,200 square feet of executive office
space at 999 Broadway, Saugus, Massachusetts 01906. The Company also leases
approximately 5,000 square feet of warehouse space located in Somerville,
Massachusetts under a lease expiring on July 31,2001 (including all extension
options that may be exercised by the Company in its discretion) and
approximately 2,741 square feet for its commissary located in Charlestown,
Massachusetts under a lease expiring on 14 August, 1998.
ITEM 3. LEGAL PROCEEDINGS
- ------- -----------------
The Company is involved in various legal matters in the ordinary course of
its business. Each of these matters is subject to various uncertainties and some
of these matters may be resolved unfavorably to the Company. Management believes
that any liability that may ultimately result from these matters will not have a
material adverse effect on the Company's financial position.
ITEM 4. SUBMISSION OF MATTERS TO VOTE OF SECURITY HOLDERS
- ------- --------------------------------------------------
During the fourth quarter of the fiscal year covered by this report, no
matters were submitted to a vote of security holders of the Company.
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<PAGE>
PART II
- -------
ITEM 5. MARKET FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
- ------- ---------------------------------------------------------
The Company's Common Stock (NASDAQ symbol: "BRAI") is traded publicly and
is quoted on the NASDAQ Small-Cap Market. As of July 25, 1997, there were
approximately 170 holders of record of the Company's Common Stock. On July 25,
1997, the last bid and asked price of the Company's Common Stock as reported on
the NASDAQ Small-Cap Market were $1.25 and $1.25 per share, respectively.
The table below represents the quarterly high and low bid and asked prices
for the Company's Common Stock for the Company's last two fiscal years. The
prices listed in this table reflect quotations without adjustment for retail
mark-up, markdown or commission, and may not represent actual transactions.
<TABLE>
<CAPTION>
High Low High Low
Bid Bid Asked Asked
--- --- ----- -----
<S> <C> <C> <C> <C>
Fiscal Year Ended April 28, 1996
First Quarter . . . . . 1.63 1.25 1.75 1.38
Second Quarter. . . . . 1.32 .50 1.38 .69
Third Quarter . . . . . 1.13 .50 1.19 .69
Fourth Quarter. . . . . 1.13 .70 1.19 .88
Fiscal Year Ended April 27, 1997
First Quarter. . . . . 1.06 .56 1.08 1.00
Second Quarter . . . . 1.00 .60 1.04 .62
Third Quarter. . . . . 1.125 1.00 1.31 1.02
Fourth Quarter . . . . 1.0825 1.04 1.22 1.08
</TABLE>
The Company has never paid cash dividends on its capital stock and does not
anticipate paying any cash dividends in the foreseeable future. Rather, the
Company intends to retain all of its future earnings to finance future growth.
ITEM 6. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATION
- ------- ---------------------------------------------------------
The following table sets forth for the fiscal periods indicated the
percentage of total revenues, unless otherwise indicated, represented by certain
items reflected in the Company's consolidated statements of operations:
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<PAGE>
Fiscal Year Ended
------------------
April 27, 1997 April 28, 1996
-------------- --------------
Income Statement Data:
Net Sales 100.0% 100.0%
Costs and expenses:
Cost of food and beverages 22.2 24.1
Other operating expenses 62.4 67.1
General and administrative 8.9 18.4
Depreciation and amortization 5.1 5.8
Loss from valuation of assets
impaired, assets to be
disposed of and restaurant
closures - 12.5
Total costs and expenses 98.6 127.9
Operating Income/(Loss) 1.4 (27.9)
Interest expense, Net 1.3 .3
Other (income) expense, net - .5
Net Income/(Loss) .1 (28.7)
Results of Operations
Overview
The Company's results of operations for fiscal 1997 was significantly
affected by the Company's continuation of its strategy to focus its efforts on
the development of its Pizzeria Regina restaurant operations and the
corresponding effort to reduce its Capucino's and Bel Canto restaurant format.
The Company closed its Brookline, Massachusetts Capucino's restaurant in
November 1995 and reopened that location in February 1996 as a full service
Pizzeria Regina and subsequently closed this location in May of 1997 due to the
inability to negotiate a favorable lease extension. In June 1995 the Company
closed its Capucino's restaurant in Framingham, Massachusetts with the intention
of converting it into a Polcari's North End restaurant. The Company subsequently
determined that it would be in its best interest to sell the restaurant. This
sale was completed in April of 1997. In August 1996, the Company opened its new
food court kiosks in the Solomon Pond Mall and the South Shore Plaza Mall (which
replaced an existing in-line restaurant in this mall).
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Results of Operations for the Years Ended April 27, 1997 and April 28, 1996
Revenues
Net sales in fiscal 1997 were $11,411,000 compared to net sales of
$10,864,000 in fiscal 1996. The increase in net sales in fiscal 1997 as compared
to fiscal 1996 reflected, among other things, an increase in net sales at the
new Solomon Pond Mall and South Shore Plaza Pizzeria Regina (which replaced an
in-line restaurant at this mall) food court restaurants which were open in
August of 1996, increased aggregate sales from the other Pizzeria Regina
restaurants and increased sales at the new Polcari's North End Restaurant. The
increases were partially offset by a reduction in net sales at the remaining Bel
Canto restaurant and the closure of the self-service Pizzeria Regina at the
South Shore Plaza in August of 1996.
Net sales at the Company's Pizzeria Regina restaurants increased to
$7,890,000 in fiscal 1997 from $6,543,000 in fiscal 1996, principally due to the
addition of sales from the new Pizzeria Regina food court kiosks and the
Brookline location opened in February 1996 which was subsequently closed in May
1997 at the completion of its lease (due to the inability to renegotiate a
market value lease). In addition there was aggregate increase in sales from the
previously existing ongoing Pizzeria Regina restaurants.
Net sales at the Company's full service casual dining restaurants decreased
to $3,479,000 in fiscal 1997 from $4,287,000 in fiscal 1996. While sales at the
new Polcari's North End restaurant in fiscal 1997 increased by over $326,000
from the sales in fiscal 1996 period, this increase was offset by decreased
sales at the remaining Bel Canto restaurant, the closure of the Framingham
Capucino's in June 1995, the closure of the Wellesley restaurant in November
1995, and the conversion of the Brookline Capucino's to a Pizzeria Regina in
February 1996. The decrease at the Bel Canto restaurant was primarily
attributable to the increased competition in the Lexington area.
Costs and Expenses
Cost of Food and Beverages
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<PAGE>
Cost of food and beverages as a percentage of net sales was 22.2% in fiscal
1997, compared to cost of food and beverages as a percentage of net sales in
fiscal 1996 of 24.1%.
The cost of food and beverages as a percentage of net sales at the Pizzeria
Regina restaurants was 18.4% in fiscal 1997, compared to 19.3% in fiscal 1996.
The decrease in this cost as a percentage of net sales was primarily a result of
lower product costs and the addition of Pizzeria Regina food courts which
generally have lower food and beverage costs then wait service restaurants.
The cost of food and beverages as a percentage of net sales at the
Company's full service casual dining restaurants decreased to 31.1% in fiscal
1997 from 32.1% in fiscal 1996. The decrease in the cost of food and beverages
as a percentage of net sales was principally due to a change in the menu
composition at the Company's full service restaurants.
Other Operating Expenses
Payroll Expenses. Payroll expenses were $3,381,000 (29.6% of net sales) in
fiscal 1997, compared to payroll expenses of $3,667,000 (33.8% of net sales) in
fiscal 1996. The decrease in payroll expenses as a percentage of net sales
compared to fiscal year 1996 was primarily attributable to the closure of the
Wellesley Bel Canto and the Framingham Capucino in fiscal year 1996.
Payroll expenses at the Pizzeria Regina restaurants increased to $2,242,000
(28.4% of net sales) in fiscal 1997 from $1,948,000 (29.8% of net sales) in
fiscal 1996 primarily due to the opening of the new Pizzeria Regina food court
restaurants in the Solomon Pond Mall and South Shore Plaza Mall in August 1996
and the opening of the new Brookline location.
Payroll expenses at the Company's full service casual dining restaurants
decreased to $1,139,000 (32.7% of net sales) in fiscal 1997 from $1,719,000
(40.1% of net sales) in fiscal 1996. The decrease in payroll expenses in amount
and as a percentage of net sales was primarily attributable to closure of the
Wellesley Bel Canto and Framingham Capucino's.
Other Operating Expenses, Exclusive of Payroll. Other operating expenses,
exclusive of payroll, were $3,738,000 (32.8% of net sales) in fiscal 1997 as
compared to other operating expenses in fiscal 1996 of $3,620,000 (33.3% of net
sales). Other operating expenses from the Pizzeria Regina restaurants exclusive
of payroll increased to $2,415,000 in fiscal 1997 from
19
<PAGE>
$1,938,000 in fiscal 1996. This increase in other operating expenses was
attributable to the addition of expenses associated with the nine months of
operations at the food court in Solomon Pond Mall and South Shore Plaza Mall and
the opening of the new Brookline location (which was subsequently closed in May
1997 at the end of the lease term). Other operating expenses from the Company's
full service casual dining restaurants exclusive of payroll decreased to
$1,130,000 in fiscal 1997 from $1,497,000 in fiscal 1996 primarily as a result
of restaurant closures. The decrease was partially offset by an increase of
operating expenses at the Polcari's North End restaurant and the addition of two
new Pizzera Regina food court locations. Other operating expenses also include
commissary expenses which were $191,000 in fiscal 1997 and $185,000 in fiscal
1996, respectively.
General and Administrative Expenses
General and administrative expenses were $1,021,000 (8.9% of net sales) in
fiscal 1997, as compared to general and administrative expenses of $1,997,000
(18.4% of net sales) in fiscal 1996. The decrease in general and administrative
expenses in fiscal 1997 compared to fiscal 1996 was due, principally, to
personnel downsizing and relocation of the corporate office.
Loss for Store closures and the Write Down of Certain Assets
In fiscal 1996, the Company decided to close its Framingham, Massachusetts
Capucino's restaurant and had lease expense associated with this property
through April 1997.
Interest Expense and Interest Income
Interest expense increased to $157,000 in fiscal 1997 as compared to
interest expense in fiscal 1996 of $34,000. The increase in interest expense was
associated with borrowings under the Company's new credit facility and the
issuance of convertible subordinated debentures.
Interest income was $5,000 in both fiscal 1997 and 1996 periods.
Litigation
The Company is involved in various legal matters in the ordinary course of
its business. Each of these matters is subject to various uncertainties and some
of these matters may be resolved unfavorably to the Company. Management believes
that any liability that may ultimately result from these matters will not have a
material adverse effect on the Company's financial position.
20
<PAGE>
Liquidity and Capital Resources
The Company has financed its operations primarily through cash generated
from operations and debt instruments. At April 27, 1997 the Company had a
negative net working capital of approximately $213,000 and cash and cash
equivalents of approximately $726,000. In December 1995, the Company obtained a
long-term credit facility with Haymarket Co-Operative Bank. The terms of the
credit facility provide that the Company may initially draw upon a $500,000
credit line ("Phase One"), and that, at the Bank's discretion, an additional
$500,000 would be made available to the Company based upon the Company's results
of operations in fiscal 1996("Phase Two"). During fiscal 1997 the company
amended the 12% note and borrowed an additional $380,750. The interest rate on
Phase One of this credit facility is 2% above the bank's prime rate. The
interest rate on Phase Two of the credit facility is a fixed rate of 12% per
annum. The Company is obligated to make monthly principal payments of $8,333 on
Phase One of the loan, commencing May 1996, with all outstanding amounts due and
payable on or before April 1, 2001. The Company is obligated to make monthly
principal payments of $8,333 on Phase Two of the loan, commencing August 1996.
The credit facility is secured by all of the assets of the Company and its
subsidiaries, including the Company's Pizzeria Regina restaurant located in the
North End of Boston, Massachusetts. The credit facility also contains certain
covenants. The President and the Treasurer of the Company and each of the
Company's subsidiaries have guaranteed the Company's obligations to the bank. A
member of the Board of Directors of the Company also serves as a member of the
bank's board of directors. As of April 27, 1997, the Company had an outstanding
balance of $825,000 under this credit facility.
During fiscal 1997 the Company had a net increase in cash of $566,000
reflecting net cash used for operating activities of $364,000, net cash used for
investing activities of $232,000 and net cash provided from financing activities
of $1,162,000. The Company's cash used in operating activities was adversely
affected by the closure of its full service casual dining Italian restaurant in
Framingham. The Company incurred approximately $344,000 in connection with the
build-out of its two new food court kiosks and the Saugus lounge area. The
Company funded these expenditures primarily through borrowings under its credit
facility and its issuance of subordinated debentures. The company has identified
other locations for food court kiosks which cost approximately $400,000 to
construct and open. During fiscal 1997, the Company issued $1,118,750 of
convertible subordinated debentures. Subordinated debentures outstanding at
21
<PAGE>
April 27, 1997 consist of convertible debentures bearing interest at 8% through
31 December, 1997; 10% through 31 December, 1998; 12% through 31 December 1999;
14% through 2011 (this is straight-lined at 13.2% annually) payable
semi-annually and convertible into the Company's common stock at a conversion
rate of $1.25 per share. The Company can redeem the convertible debentures under
certain conditions, as defined. The debentures are due December 2011. The
Company is authorized to issue an additional $381,250 of subordinated
debentures.
At April 27, 1997 the Company had long-term debt obligations, less current
maturities, in the amount of $2,075,000, including the $625,000 of borrowings
under the Company's credit facility. At that date the Company's short-term debt
consisted of current maturities of long-term debt in the aggregate amount of
$235,000.
The Company believes that its existing resources, borrowings under its
credit facility, proceeds from the issuance of convertible subordinated
debentures and cash flow from operations will be sufficient to allow it to meet
its obligations over the next twelve months. The Company is also seeking
additional financing in order to fund its expansion plans and other cash flow
requirements. There can be no assurance that cash flows will improve in an
amount sufficient to allow the Company to fund its current obligations and
operating expenses, or that the Company will be able to obtain such additional
financing upon favorable terms, if at all. Failure of the Company to do so could
result in the Company's failure to be able to meet its cash flow requirements.
"Safe Harbor" Statement Under the Private Securities Litigation Reform Act of
1995
Forward-looking statements in this report, including without, limitation,
statements relating to the adequacy of the Company's resources and expansion
plans, are made pursuant to the safe harbor provisions of the Private Securities
Litigation Reform Act of 1995. Investors are cautioned that such forward-looking
statements involve risks and uncertainties, including without limitation:
potential quarterly fluctuations in the Company's operating results; seasonality
of sales; competition; risks associated with expansion; the Company's reliance
on key employees; risks generally associated with the restaurant industry; risks
associated with geographic concentration of the Company's restaurants; risks
associated with serving alcoholic beverages; and other risks and uncertainties
indicated from time-to-time in the Company's filings with the Securities and
Exchange Commission.
22
<PAGE>
ITEM 7. FINANCIAL STATEMENTS
- ------- --------------------
BOSTON RESTAURANT ASSOCIATES, INC. AND SUBSIDIARIES
INDEX TO FINANCIAL STATEMENTS
Page
----
Boston Restaurant Associates, Inc. and Subsidiaries
Index to Financial Statements...................... F-1
Report of Independent Certified Public Accountants. F-2
Consolidated Financial Statements
Balance Sheets................................ F-3
Statements of operations...................... F-5
Statements of stockholders' equity............ F-6
Statements of cash flows...................... F-7
Summary of accounting policies................ F-8
Notes to consolidated financial statements.... F-11
ITEM 8. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
- ------- ----------------------------------------------------------------
There were no disagreements on accounting principles or practices or
financial statement disclosure between the Company and its accountants during
the fiscal year ended April 27, 1997.
PART III
- --------
ITEM 9. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS;
COMPLIANCE WITH SECTION 16(a) OF THE EXCHANGE ACT
- ------- -------------------------------------------------------------
The information required by this Item 9 is hereby incorporated by reference
to the Company's definitive proxy statement to be filed by the Company within
120 days after the close of its 1997 fiscal year.
ITEM 10. EXECUTIVE COMPENSATION
- -------- ----------------------
The information required by this Item 10 is hereby incorporated by
reference to the Company's definitive proxy statement to be filed by the Company
within 120 days after the close of its 1997 fiscal year.
23
<PAGE>
ITEM 11. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
- -------- --------------------------------------------------------------
The information required by this Item 11 is hereby incorporated by
reference to the Company's definitive proxy statement to be filed by the Company
within 120 days after the close if its 1997 fiscal year.
ITEM 12. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
- -------- ----------------------------------------------
The information required by this Item 12 is hereby incorporated by
reference to the Company's definitive proxy statement to be filed by the Company
within 120 days after the close of its 1997 fiscal year.
ITEM 13. EXHIBITS, LISTS AND REPORTS ON FORM 8-K
- -------- ---------------------------------------
(a) Exhibits
Exhibit Reference
Number
2 Stock for Stock Purchase Agreement, as A-2*
amended, among Capucino's, Inc., a Delaware
corporation, and John P. Polcari, Jr. and
George R. Chapdelaine, in their capacity as
Voting Trustees under that certain Amended
And Restated Voting Trust Agreement dated
April 28, 1994
3(a) Amended Certificate of Incorporation of the A-3(a)*
Registrant
(b) Amended Bylaws of the Registrant A-3(b)*
4(a) Description of Common Stock (contained in A-4(a)*
the Amended Certificate of Incorporation
of the Registrant, filed as Exhibit 3(a))
(b) Form of Certificate evidencing shares of F-4(b)*
Common Stock
(c) Amended and Restated Voting Trust Agreement A-9*
dated April 28, 1994, as amended
10(a) Lease dated July 15, 1987 between PRI and A-10(a)*
the Longwood Galleria Associates Limited
Partnership regarding a Pizzeria Regina
Location in the Longwood Galleria Mall,
Boston, Massachusetts
24
<PAGE>
(b) Lease dated June 15, 1987 (together with an A-10(b)*
amendment dated January 23, 1991) between
Ocean, Inc. and the BRA Nominee Trust
Regarding a Pizzeria Regina location in the
North End of Boston, Massachusetts
(c) Lease dated September 9, 1987 between Ocean, A-10(c)*
Inc. and Bellwether Properties of
Massachusetts Limited Partnership regarding
A Pizzeria Regina location in the Burlington
Mall, Burlington, Massachusetts
(d) Lease dated January 19, 1976 (together with A-10(d)*
amendments thereto dated April 1, 1980 and
November 6, 1987 as well as an amendment
And renewal notice dated December 7, 1990)
Between Fantail Restaurant, Inc. and Faneuil
Hall Market Place, Inc. regarding a Pizzeria
Regina location in the Faneuil Hall
Marketplace, Boston, Massachusetts (upstairs)
(e) Lease dated December 30, 1986 (together with A-10(e)*
an amendment thereto dated November 6, 1987
and a renewal notice dated December 7, 1990)
between Fantail Restaurant, Inc. and Faneuil
Hall Market Place, Inc. regarding a Pizzeria
Regina location in the Faneuil Hall
Marketplace, Boston, Massachusetts (downstairs)
(f) Lease dated June 9, 1980 (together with A-10(f)*
an assignment thereof dated March 11, 1991)
between Ocean, Inc. and Braintree Property
Associates Limited Partnership regarding
A Pizzeria Regina location in the South
Shore Plaza, Braintree, Massachusetts
(g) Lease dated March 6, 1984 (together with A-10(g)*
an amendment thereto dated September 13,
1991) between Bel Canto Restaurants, Inc.
and the Wellesley Realty Trust regarding a
Bel Canto location in Wellesley, Massachusetts
(h) Lease dated January 12, 1988 (together with A-10(h)*
amendments thereto dated August 31, 1988 and
September 13, 1991 and an assignment thereof
Dated September 13, 1991) between Bel Canto
Restaurants, Inc. and the 1709 Mass Avenue
Nominee Trust regarding a Bel Canto location
In Lexington, Massachusetts
25
<PAGE>
(i) Lease dated October 23, 1990 (together with A-10(I)*
an amendment thereto dated June 19, 1992)
between Capucino's Boston IV, Inc. and
Circuit City Stores, Inc. regarding a
Capucino's location in Framingham,
Massachusetts
(j) Lease dated February 8, 1972 (together with A-10(j)*
an amendment thereto dated July 10, 1973 and
an assignment thereof dated May 31, 1977)
and March 11, 1982 (together with an
amendment thereto dated March 11, 1982)
between Capucino's, Inc. and Ben-Har
Properties Realty Trust regarding a
Capucino's location in Brookline,
Massachusetts
(k) Lease dated August 19, 1992 between A-10(k)*
Capucino's of Saugus, Inc. and the Yen H.
Tow Realty Trust regarding a Capucino's
Location in Saugus, Massachusetts
(l) Lease dated August 2, 1990 between A-10(l)*
Capucino's Cambridge, Inc. and LEST
Corporation regarding a Capucino's
Location in Cambridge, Massachusetts
(m) Lease dated October 20, 1986 (together A-10(m)*
with an amendment thereto dated
September 10, 1991) between PRI and
Portland Causeway Realty Trust regarding
the Registrant's principal executive Offices
in Boston, Massachusetts
(n) Lease dated August 1, 1993 between Polcari A-10(n)*
Enterprises, Inc. and the E.J.H. Realty
Trust regarding Registrant's warehouse
Located in Somerville, Massachusetts
(o) Lease dated October 14, 1986 between A-10(o)*
Polcari Enterprises, Inc. and Costa Fruit
& Produce Co., Inc. regarding the
Registrant's commissary located in
Charlestown, Massachusetts
(p) Lease dated June 30, 1995 between Berlin G-10(p)*
Properties Limited Partnership and Ocean,
Inc. regarding a Pizzeria Regina location
In the Solomon Pond Mall, Berlin and
Marlborough, Massachusetts
26
<PAGE>
(q) Lease dated May 10, 1994 between Bellwether G-10(q)*
Properties of Massachusetts, L.P. and Ocean,
Inc. regarding a Pizzeria Regina in the
Burlington Mall, Burlington, Massachusetts
(r) Employment Agreement between the Registrant A-10(p)***
and George R. Chapdelaine
(s) Form of 1994 Nonemployee Director Stock A-10(q)***
Option Plan
(t) Form of 1994 Combination Stock Option Plan A-10(r)***
(u) Agent Borrowing Agreement by and among PRI A-10(s)*
and other subsidiaries of the Registrant
and BayBank dated February 8, 1991, as
amended on April 29, 1994
(v) $1,038,666 Commercial Note between PRI and A-10(t)*
BayBank dated February 8, 1991 as amended
On April 29, 1994
(w) $275,000 Commercial Note between PRI and A-10(u)*
Baybank dated February 9, 1991, as amended
On April 29, 1994
(x) Master Note in favor of BayBank issued by A-10(v)*
PRI on April 29, 1994
(y) Form of Guaranty of the Registrant in favor A-10(w)*
of BayBank
(z) Form of Guaranty of George R. Chapdelaine A-10(x)*
in favor of BayBank
(aa) Form of Guaranty of John P. Polcari in favor A-10(y)*
of BayBank
(bb) Stock Purchase Warrant issued to Corning A-10(z)*
Partners IV L.P. on April 29, 1994
(cc) $500,000 Subordinated debenture of the A-10(aa)*
Registrant issued to Corning Partners
IV, L.P. on April 29, 1994
(dd) Form of Indemnification Agreement with A-10(bb)***
each of the directors and certain
officers of the Registrant
(ee) Incentive Stock Option Plan B-10(h)***
(ff) Non-Employee Director's Stock Option C-10(h)***
Plan
27
<PAGE>
(gg) Form of Stock Option Agreement between D-10(h)
the Registrant and each of James I. Maruna,
W. Rex Seley and Richard J. Reeves
(hh) Severance Agreement between the Registrant E-10(p)***
and James I. Maruna
(ii) Amendment to Employment Agreement between A-(hh)***
the Registrant and George R. Chapdelaine
(jj) $500,000 Note, dated December 28, 1995, H-10.01*
issued by Boston Restaurant Associates, Inc.
in favor of Haymarket Co-Operative Bank
(kk) Condominium Mortgage-Security Agreement, H-10.02*
dated December 28, 1995, issued by George
R. Chapdelaine, Trustee of BRA Nominee
Trust, in favor of Haymarket Co-Operative
Bank
(ll) Loan and Security Agreement, dated H-10.03*
December 28, 1995, between Boston
Restaurant Associates, Inc. and Haymarket
Co-Operative Bank
(mm) Guaranty of Ocean, Inc., Polcari Enterprises, H-10.04*
Inc., Pizzeria Regina, Inc., Capucino Boston
IV, Inc., Fantail Restaurant, Inc.,
Capucino's, Inc., Bel Canto Restaurant, Inc.,
And Capucino's of Saugus, Inc., dated
December 28, 1995, in favor of Haymarket
Co-Operative Bank
(nn) Guaranty of George R. Chapdelaine, H-l0.05*
individually and as trustee of the BRA
Nominee Trust, dated December 28, 1995,
In favor of Haymarket Co-Operative Bank
(oo) Guaranty of John P. Polcari, Jr., dated H-10.06*
December 28, 1995, in favor of Haymarket
Co-Operative Bank
(pp) Form of Option granted to Mr. Chapdelaine H-10.07*
and Mr. Polcari in consideration of
their guaranties of BRA's obligations
of Boston Restaurant Associates, Inc.
under its credit facility
(qq) Lease dated July 24, 1996 between Faneuil I-10.08*
Hall Marketplace, Inc. and Fantail
Restaurant, Inc. regarding a Pizzeria
Regina location in the Faneuil Hall
Marketplace Area, Boston, Massachusetts
28
<PAGE>
(rr) $350,000 Note, dated April 19, 1996, I-10.09*
issued by Boston Restaurant Associates,
Inc. in favor of Haymarket Co-Operative
Bank
(ss) $500,000 Note, dated July 26, 1996, I-10.10*
issued by Boston Restaurant Associates,
Inc. in favor of Haymarket Co-Operative
Bank
(tt) Equipment Lease dated July 26, 1996 I-10.11*
between HCB Corporation and Ocean, Inc.
regarding certain equipment at a
Pizzeria Regina location in the Solomon
Pond Mall, Berlin and Marlborough,
Massachusetts
(uu) Lease dated 16 November, 1995 between Filed
Braintree Property Associates, LLP and Herewith
Ocean, Inc. regarding a Pizzeria Regina
Location in South Shore Plaza,
Braintree, Massachusetts
11 Calculation of net income (loss)
per share of common stock Filed
Herewith
21 Subsidiaries of the Registrant A-21*
23 Consent of BDO Seidman, LLP Filed
Herewith
27 Financial Schedule Filed
Herewith
29
<PAGE>
A Incorporated by reference to the Company's registration
Statement on Form SB-2 (Registration No. 33-81068). The number
set forth herein is the number of the Exhibit in said
registration statement
B Incorporated by reference to the Company's registration
statement on Form S-1 (File No. 33-31748). The number set
forth herein is the number of the Exhibit in said registration
statement
C Incorporated by reference to the Company's annual report on
Form 10-K for the year ended April 30, 1991. The number set
forth herein is the number of the Exhibit in said annual
report
D Incorporated by reference to the Company's transition report
on Form 10K for the seven months ended April 30, 1990. The
number set forth herein is the number of the Exhibit in said
transition report
E Incorporated by reference to the Company's annual report on
Form 10-K for the year ended April 30, 1993. The number set
forth herein is the number of the Exhibit in said annual
report.
F Incorporated by reference to the Company's annual report on
Form 10-K for the year ended April 30, 1994. The number set
forth herein is the number of the Exhibit in said annual
report.
G Incorporated by reference to the Company's annual report on
Form 10-K for the year ended April 30, 1995. The number set
forth herein is the number of the Exhibit in said annual
report.
H Incorporated by reference to the Company's quarterly report
on Form 10-QSB for the period ended January 28, 1996. The
number set forth herein is the number of the Exhibit in said
quarterly report
I Incorporated by reference to the Company's annual report on
Form 10-KSB for the year ended 28 April, 1996. The number at
forth herein is the number of the Exhibit in said annual
report.
* In accordance with Rule 12b-32 under the Securities Exchange
Act of 1934, as amended, reference is made to the documents
previously filed with the Securities and Exchange Commission,
which documents are hereby incorporated by reference
** Management Contract or Compensatory Plan or Arrangement
30
<PAGE>
- -------
(b) REPORTS ON FORM 8-K *by reference
-------------------
Boston Restaurant Associates, Inc. filed a report on Form 8-K date 31
December, 1996 reporting the issuance of 15-year subordinate convertible
debentures.
31
<PAGE>
SIGNATURES
In accordance with section 13 or 15(d) of the Securities Exchange Act
of 1934, the registrant caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
BOSTON RESTAURANT ASSOCIATES, INC.
Date: 25, July, 1997 By:/s/George R. Chapdelaine
------------------------
George R. Chapdelaine, President
In accordance with the Securities Exchange Act of 1934, this report has
been signed below by the following persons on behalf of the registrant and in
the capacities and on the dates indicated.
SIGNATURE DATE
--------- ----
/s/ George R. Chapdelaine 25 July, 1997
-------------------------
George R. Chapdelaine, Chief
Executive Officer, President
and Director
/s/John P. Polcari 25 July, 1997
------------------
John P. Polcari, Jr.,
Treasurer and Director
/s/Joseph J. Caruso 25 July, 1997
-------------------
Joseph J. Caruso, Director
/s/Richard J. Reeves 25 July, 1997
--------------------
Richard J. Reeves, Director
/s/Terrance A. Smith 25 July, 1997
--------------------
Terrance A. Smith, Director
/s/Lucille Salhany 25 July, 1997
------------------
Lucille Salhany, Director
/s/Roger Lipton 25 July, 1997
---------------
Roger Lipton, Director
<PAGE>
Boston Restaurant
Associates, Inc.
and Subsidiaries
- --------------------------------------------------------------------------------
Consolidated Financial Statements
Years Ended April 27, 1997 and
April 28, 1996
<PAGE>
Boston Restaurant Associates, Inc.
and Subsidiaries
Index to Financial Statements
- --------------------------------------------------------------------------------
Report of Independent Certified Public Accountants F-2
Consolidated Financial Statements:
Balance sheets F-3 to F-4
Statements of operations F-5
Statements of stockholders' equity F-6
Statements of cash flows F-7
Summary of accounting policies F-8 to F-10
Notes to consolidated financial statements F-11 to F-27
F-1
<PAGE>
Report of Independent Certified Public Accountants
To the Board of Directors and Stockholders of
Boston Restaurant Associates, Inc.
We have audited the accompanying consolidated balance sheets of Boston
Restaurant Associates, Inc. and subsidiaries as of April 27, 1997 and April 28,
1996, and the related consolidated statements of operations, stockholders'
equity and cash flows for the years then ended. These financial statements are
the responsibility of the Company's management. Our responsibility is to express
an opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the financial position of Boston Restaurant
Associates, Inc. and subsidiaries at April 27, 1997 and April 28, 1996, and the
results of their operations and their cash flows for the years then ended, in
conformity with generally accepted accounting principles.
BDO Seidman, LLP
Boston, Massachusetts
July 2, 1997
F-2
<PAGE>
Boston Restaurant Associates, Inc.
and Subsidiaries
Consolidated Balance Sheets
- --------------------------------------------------------------------------------
April 27, April 28,
1997 1996
- --------------------------------------------------------------------------------
Assets (Note 4)
Current:
Cash and cash equivalents $726 054 $159 564
Accounts receivable 69 729 65 079
Inventories (Note 1) 209 295 232 427
Prepaid expenses and other 27 532 66 609
- --------------------------------------------------------------------------------
Total current assets 1 032 610 523 679
- --------------------------------------------------------------------------------
Property and equipment (Notes 9 and 12):
Building 512 500 512 500
Leasehold improvements 2 591 941 2 759 369
Equipment, furniture and fixtures 1 799 061 1 995 784
- --------------------------------------------------------------------------------
4 903 502 5 267 653
Less accumulated depreciation and amortization 2 247 174 2 527 972
- --------------------------------------------------------------------------------
Net property and equipment 2 656 328 2 739 681
- --------------------------------------------------------------------------------
Other assets (Notes 2 and 12) 944 180 752 624
- --------------------------------------------------------------------------------
$4 633 118 $4 015 984
================================================================================
See accompanying summary of accounting policies and notes to
consolidated financial statements.
F-3
<PAGE>
Boston Restaurant Associates, Inc.
and Subsidiaries
Consolidated Balance Sheets
(Continued)
- --------------------------------------------------------------------------------
April 27, April 28,
1997 1996
- --------------------------------------------------------------------------------
Liabilities and Stockholders' Equity
Current liabilities:
Accounts payable (Note 12) $ 382 294 $ 885 791
Accrued expenses (Notes 3 and 12) 628 277 1 021 641
Current maturities (Notes 4, 5, 6 and 9):
Long-term debt 200 000 144 836
Notes payable - stockholder 4 261 4 038
Obligations under capital leases 30 850 -
Subordinated debentures - 84 000
- --------------------------------------------------------------------------------
Total current liabilities 1 245 682 2 140 306
Long-term obligations:
Long-term debt, less current maturities (Note 4) 625 000 474 414
Notes payable - stockholder, less current
maturities (Note 5) 125 810 130 072
Obligations under capital leases, less
current maturities (Note 9) 138 850 -
Deferred rent (Note 9) 67 024 60 871
Subordinated debentures (Note 6) 1 118 750 -
- --------------------------------------------------------------------------------
Total liabilities 3 321 116 2 805 663
- --------------------------------------------------------------------------------
Commitments and contingencies (Notes 4, 6, 9, 10 and 13)
Stockholders' equity (Notes 5, 6, 10 and 11):
Common stock, $.01 par value, 25,000,000
shares authorized; shares issued 5,015,693
and 5,015,293 50 157 50 153
Additional paid-in capital 9 043 199 8 953 785
Accumulated deficit (7 781 354) (7 793 617)
- --------------------------------------------------------------------------------
Total stockholders' equity 1 312 002 1 210 321
- --------------------------------------------------------------------------------
$ 4 633 118 $4 015 984
================================================================================
See accompanying summary of accounting policies and notes to
consolidated financial statements.
F-4
<PAGE>
Boston Restaurant Associates, Inc.
and Subsidiaries
Consolidated Statements of Operations
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------
April 27, April 28,
Years ended 1997 1996
- ----------------------------------------------------------------------------------------------
<S> <C> <C>
Net sales $11 410 886 $10 864 418
Costs and expenses:
Cost of food, beverages and liquor 2 532 050 2 618 187
Other operating expenses 7 119 142 7 287 378
General and administrative 1 020 796 1 996 752
Depreciation and amortization 579 071 635 378
Loss from valuation of assets impaired, assets to
to be disposed of and restaurant closures (Note 12) - 1 355 034
- ----------------------------------------------------------------------------------------------
Total costs and expenses 11 251 059 13 892 729
- ----------------------------------------------------------------------------------------------
Operating income (loss) 159 827 (3 028 311)
Interest expense, net of interest income of $4,983 and
$5,305 in 1997 and 1996, respectively 151 941 29 185
Other (income) expense, net (Note 7) (4 377) 50 404
- ----------------------------------------------------------------------------------------------
Net income (loss) $ 12 263 $(3 107 900)
==============================================================================================
Net income (loss) per share $ - $ (.62)
==============================================================================================
Weighted average number of common and
dilutive common equivalent shares outstanding 5 015 306 5 015 293
==============================================================================================
</TABLE>
See accompanying summary of accounting policies and notes to
consolidated financial statements.
F-5
<PAGE>
Boston Restaurant Associates, Inc.
and Subsidiaries
Consolidated Statements of Stockholders' Equity
<TABLE>
- ---------------------------------------------------------------------------------------------------------------------
<CAPTION>
Common Stock
$.01 Par Value Additional Total
Years ended April 27, 1997 and ----------------- Paid-In Accumulated Stockholders'
April 28, 1996 Shares Amount Capital Deficit Equity
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Balance, April 30, 1995 5 015 293 $50 153 $8 953 785 $(4 685 717) $4 318 221
Net loss for the year - - - (3 107 900) (3 107 900)
- ---------------------------------------------------------------------------------------------------------------------
Balance, April 28, 1996 5 015 293 50 153 8 953 785 (7 793 617) 1 210 321
Exercise of stock options (Note 13) 400 4 384 - 388
Issuance of options and warrants in
exchange for services (Note 11) - - 89 030 - 89 030
Net income for the year - - - 12 263 12 263
- ---------------------------------------------------------------------------------------------------------------------
Balance, April 27, 1997 5 015 693 $50 157 $9 043 199 $(7 781 354) $1 312 002
=====================================================================================================================
</TABLE>
See accompanying summary of accounting policies
and notes to consolidated financial statements.
F-6
<PAGE>
Boston Restaurant Associates, Inc.
and Subsidiaries
Consolidated Statements of Cash Flows
(Note 11)
<TABLE>
- -----------------------------------------------------------------------------------------------------------
<CAPTION>
April 27, April 28,
Years ended 1997 1996
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C>
Cash flows from operating activities:
Net income (loss) $ 12 263 $(3 107 900)
Adjustments to reconcile net income (loss) to net cash
used for operating activities:
Loss on disposal of fixed assets - 46 477
Depreciation and amortization 579 071 635 378
Loss from valuation of assets impaired, assets to be
disposed of and restaurant closures - 1 355 034
Options granted in exchange for services 20 300 -
Changes in operating assets and liabilities:
Accounts receivable (4 650) 33 233
Inventories 23 132 108 394
Prepaid expenses and other 39 077 749
Other assets (142 570) (13 025)
Accounts payable (503 497) 134 654
Accrued expenses (393 364) 174 302
Deferred rent 6 153 138
- -----------------------------------------------------------------------------------------------------------
Net cash used for operating activities (364 085) (632 566)
- -----------------------------------------------------------------------------------------------------------
Cash flows from investing activities:
Capital expenditures (331 430) (661 054)
Proceeds from sales of fixed assets 99 811 265 747
- -----------------------------------------------------------------------------------------------------------
Net cash used for investing activities (231 619) (395 307)
- -----------------------------------------------------------------------------------------------------------
Cash flows from financing activities:
Proceeds from issuance of long-term debt 380 750 619 250
Repayments of long-term debt (175 000) (971)
Repayments of capital lease obligations (20 300) -
Repayments of stockholder loans (4 039) (3 820)
Repayments of subordinated debentures (84 000) (116 000)
Proceeds from issuance of subordinate debentures 1 118 750 -
Proceeds from exercise of stock options 388 -
Debt issuance costs (54 355) -
- -----------------------------------------------------------------------------------------------------------
Net cash provided by financing activities 1 162 194 498 459
- -----------------------------------------------------------------------------------------------------------
Net increase (decrease) in cash and cash equivalents 566 490 (529 414)
Cash and cash equivalents, beginning of year 159 564 688 978
- -----------------------------------------------------------------------------------------------------------
Cash and cash equivalents, end of year $ 726 054 $ 159 564
===========================================================================================================
</TABLE>
See accompanying summary of accounting policies
and notes to consolidated financial statements.
F-7
<PAGE>
Boston Restaurant Associates, Inc.
and Subsidiaries
Summary of Accounting Policies
- --------------------------------------------------------------------------------
Nature of Business The Company is engaged in the restaurant
and Basis of business. As of April 27, 1997, the Company
Presentation operated nine pizza and two casual Italian
dining restaurants, including one held for
sale. As of April 28, 1996, the Company
operated eight pizza and two casual Italian
dining restaurants, including one held for
sale. Another of the Company's restaurant
locations has been closed since June 1995
and was sold in April 1997. In May 1997, the
lease for a pizza restaurant location
expired and was not renewed.
The consolidated financial statements
include the accounts of the Company and its
wholly-owned subsidiaries. All significant
intercompany balances and transactions have
been eliminated.
Fiscal Year The Company's fiscal year ends on the last
Sunday in April. Fiscal years 1997 and 1996
both included 52 weeks.
Use of Estimates The preparation of financial statements in
conformity with generally accepted
accounting principles requires management to
make estimates and assumptions that affect
the reported amounts of assets and
liabilities and disclosure of contingent
assets and liabilities at the date of the
financial statements and reported amounts of
revenues and expenses during the reporting
period. Actual results could differ from
those estimates.
Inventories Inventories are valued at the lower of cost
(first-in, first-out) or market.
Property and Property and equipment are stated at cost.
Equipment Depreciation is computed using accelerated
and straight-line methods over the estimated
useful lives of the assets. Leasehold
improvements are amortized over the
estimated useful lives of the improvements
or the length of the lease, including
anticipated renewal periods, whichever is
shorter.
F-8
<PAGE>
Boston Restaurant Associates, Inc.
and Subsidiaries
Summary of Accounting Policies
- --------------------------------------------------------------------------------
Other Assets
Goodwill Goodwill resulting from the excess of cost
over fair value of net assets acquired is
being amortized on a straight-line basis
over 20 years. The Company evaluates the
recoverability and remaining life of its
goodwill and determines whether the goodwill
should be completely or partially
written-off or the amortization period
accelerated. The Company will recognize an
impairment of goodwill if undiscounted
estimated future operating cash flows of the
acquired business are determined to be less
than the carrying amount of the goodwill. If
the Company determines that the goodwill has
been impaired, the measurement of the
impairment will be equal to the excess of
the carrying amount of the goodwill over the
amount of the undiscounted estimated future
operating cash flows. If an impairment of
goodwill were to occur, the Company would
reflect the impairment through a reduction
in the carrying value of goodwill. During
fiscal 1996, goodwill was reduced due to the
Company's determination that impairments had
occurred (see Note 12).
Deferred Costs incurred in connection with obtaining
Financing Costs financing are amortized over the terms of
the related debt.
Pre-Opening Costs All nonrecurring costs, such as recruiting,
training and other initial direct
administrative expenses associated with the
opening of new restaurant locations are
expensed as incurred.
Taxes on Income The Company accounts for income taxes under
the asset and liability method pursuant to
Statement of Financial Accounting Standards
No. 109 ("SFAS 109"), "Accounting for Income
Taxes." Under SFAS 109, deferred income
taxes are recognized for the future tax
consequences attributable to differences
between the financial statement carrying
amounts of existing assets and liabilities
and their respective tax basis. Deferred tax
assets and liabilities are measured using
enacted tax rates expected to apply to
taxable income in the years in which those
temporary differences are expected to be
recovered or settled. Under SFAS 109, the
effect on deferred taxes of a change in tax
rates is recognized in income in the period
that includes the enactment date.
F-9
<PAGE>
Boston Restaurant Associates, Inc.
and Subsidiaries
Summary of Accounting Policies
- --------------------------------------------------------------------------------
Cash Equivalents For purposes of the statements of cash
flows, the Company considers all highly
liquid debt instruments purchased with a
maturity of three months or less to be cash
equivalents.
Net Income (Loss) Net income (loss) per share is based on the
Per Share weighted average number of common and
dilutive common equivalent shares
outstanding. Common stock equivalents in the
form of stock options and warrants when
dilutive are also considered in the
computation.
New Accounting Effective April 29, 1996, the Company
Standards adopted the provisions of Statement of
Financial Accounting Standards No. 123,
"Accounting for Stock Based Compensation".
The Company has elected to continue to
account for stock options at their intrinsic
value with disclosure of the effects of fair
value accounting on net earnings (loss) and
earnings (loss) per share on a pro forma
basis.
Statement of Financial Accounting Standards
No. 128, "Earnings per Share," (FAS No.
128") issued by the Financial Accounting
Standards Board is effective for financial
statements for fiscal years ending after
December 15, 1997. The new standard
establishes standards for computing and
presenting earnings per shares.
The effect of adopting Statement of
Financial Accounting Standards No. 128,
"Earnings per Share," is not expected to be
material. The Company is required to adopt
the disclosure requirements of FAS No. 128
during the year ended April 26, 1998.
Reclassifications Certain reclassifications have been made to
the 1996 financial statements to conform to
the 1997 presentation.
F-10
<PAGE>
Boston Restaurant Associates, Inc.
and Subsidiaries
Notes to Consolidated Financial Statements
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------
1. Inventories Inventories consist of the following:
April 27, April 28,
1997 1996
----------------------------------------------------------------------------------
<S> <C> <C>
Food, beverages and liquor $110 732 $131 098
Paper goods and supplies 98 563 101 329
Total $209 295 $232 427
==================================================================================
</TABLE>
2. Other Assets Other assets consist of the following:
<TABLE>
<CAPTION>
April 27, April 28,
1997 1996
----------------------------------------------------------------------------------
<S> <C> <C>
Goodwill $ 765 133 $765 133
Deferred financing costs 212 100 13 015
Deposits and other 99 859 31 762
Favorable lease 41 590 41 590
----------------------------------------------------------------------------------
1 118 682 851 500
Less accumulated amortization 174 502 98 876
----------------------------------------------------------------------------------
Total $ 944 180 $752 624
==================================================================================
</TABLE>
3. Accrued Expenses Accrued expenses consist of the following:
<TABLE>
<CAPTION>
April 27, April 28,
1997 1996
---------------------------------------------------------------------------------
<S> <C> <C>
Compensation $230 117 $ 226 015
Accrued rent 89 455 9 953
Taxes other than income taxes 88 786 117 534
Professional fees 50 000 84 484
Reserves for store closures (Note 12) 46 325 263 599
Gift certificates 37 365 31 694
Interest 35 315 5 576
Insurance 10 873 41 708
Reserve for legal contingencies (Note 9) - 200 000
Other 40 041 41 078
---------------------------------------------------------------------------------
Total $628 277 $1 021 641
=================================================================================
</TABLE>
F-11
<PAGE>
Boston Restaurant Associates, Inc.
and Subsidiaries
Notes to Consolidated Financial Statements
4. Long-Term Debt Long-term debt consists of the following:
<TABLE>
<CAPTION>
April 27, April 28,
1997 1996
<S> <C> <C>
----------------------------------------------------------------------------------
Note payable to a bank, interest at prime
plus 2% (10.5% at April 27, 1997), payable
in monthly installments of $8,333 plus
interest, due April, 2001.
$400 000 $500 000
Note payable to a bank, interest at 12.0%,
payable in monthly installments of $8,333
plus interest, due July, 2001.
425 000 119 250
----------------------------------------------------------------------------------
Total 825 000 619 250
Less current maturities 200 000 144 836
----------------------------------------------------------------------------------
Long-term debt $625 000 $474 414
==================================================================================
</TABLE>
During fiscal 1997, the Company amended the
12% note and borrowed an additional
$380,750. The terms of the amended note
include interest at 12%, payable in monthly
installments of $8,333 plus interest, due
July 2001.
The notes payable to a bank are
collateralized by substantially all of the
Company's assets, excluding real estate, and
are personally guaranteed by both the
Company's President and Treasurer.
In connection with their guarantees of the
notes payable, the Company issued options to
purchase an aggregate of 115,500 shares of
the Company's common stock in fiscal 1997
and 357,000 shares of the Company's common
stock in fiscal 1996 to the Company's
President and Treasurer. The Company also
issued warrants to purchase a total of
42,500 shares of the Company's common stock
to the bank in connection with the issuance
of the notes payable (see Note 10). The
value of these options and warrants was not
material as of their issuance dates. A
member of the Company's Board of Directors
also serves as a member of the bank's Board
of Directors.
F-12
<PAGE>
Boston Restaurant Associates, Inc.
and Subsidiaries
Notes to Consolidated Financial Statements
- --------------------------------------------------------------------------------
4. Long-Term Debt Maturities of the long-term debt are as
(Continued) follows:
Fiscal year ending Amount
--------------------------------------------
1998 $200 000
1999 200 000
2000 200 000
2001 200 000
2002 25 000
--------------------------------------------
Total $825 000
============================================
5. Notes Payable - Notes payable - stockholder consists of two
Stockholder notes, with interest at 7.18% and 8%,
payable in aggregate monthly installments of
principal and interest of $810, maturing
January, 2017.
Maturities of the stockholder notes are as
follows:
Fiscal year ending Amount
--------------------------------------------
1998 $ 4 261
1999 4 494
2000 4 759
2001 4 993
2002 5 274
Thereafter 106 290
--------------------------------------------
Total $130 071
============================================
F-13
<PAGE>
Boston Restaurant Associates, Inc.
and Subsidiaries
Notes to Consolidated Financial Statements
- --------------------------------------------------------------------------------
6. Subordinated Subordinated debentures outstanding at April
Debentures 27, 1997 consist of convertible debentures
bearing interest at variable rates of 8%
through December 31, 1997, 10% through
December 31, 1998, 12% through December 31,
1999 and 14% through December 31, 2011,
payable semi-annually and convertible into
the Company's common stock at a conversion
rate of $1.25 per share. The Company has
recorded interest costs related to these
debentures at a straight-lined rate of
13.2%. The convertible debentures
automatically convert into shares of common
stock at the conversion rate if the average
bid price of the Company's common stock for
any sixty consecutive trading days has been
equal to or greater than $3.00. The
debentures are due December 31, 2011. The
Company is authorized to issue an additional
$381,250 of subordinated debentures.
The subordinated debentures outstanding at
April 28, 1996 consist of convertible
subordinated debentures bearing interest at
10% payable quarterly which were convertible
into the Company's common stock at a
conversion rate of $5.00 per share.
These debentures were paid in full during
fiscal 1997.
7. Other (Income) Other (income) expense, net consists of the
Expense, Net following:
<TABLE>
<CAPTION>
April 27, April 28,
Years ended 1997 1996
- -------------------------------------------------------------------------------------------
<S> <C> <C>
Other (income) expense $(4 377) $ 3 927
Loss on disposal
of fixed assets - 46 477
-------------------------------------------------------
Total $(4 377) $50 404
=======================================================
</TABLE>
F-14
<PAGE>
Boston Restaurant Associates, Inc.
and Subsidiaries
Notes to Consolidated Financial Statements
- --------------------------------------------------------------------------------
8. Taxes on Income At April 27, 1997, the Company has the
following net operating loss carryforwards,
subject to review by the Internal Revenue
Service, available to offset future taxable
income for Federal income tax purposes
as indicated:
<TABLE>
<CAPTION>
Expiration
Amount Dates
<S> <C> <C>
-----------------------------------------------------------------------------------
Net operating losses purchased in a 1994
acquisition, whose use is limited $2 918 000 2004-2009
Net operating losses incurred before and
after acquisition and available for
immediate offset against taxable income 4 481 000 1998-2012
Deferred tax assets are comprised of the
following:
April 27, April 28,
1997 1996
------------------------------------------------------------------------------------
Deferred tax assets:
Net operating loss carryforwards $ 2 960 000 $ 2 198 000
Losses on store closures and
write-downs not yet deductible
for tax purposes 496 000 459 000
Reserves and accruals not yet
deductible for tax purposes - 80 000
Valuation allowance (3 456 000) (2 737 000)
------------------------------------------------------------------------------------
Net deferred tax assets $ - $ -
====================================================================================
</TABLE>
F-15
<PAGE>
Boston Restaurant Associates, Inc.
and Subsidiaries
Notes to Consolidated Financial Statements
- --------------------------------------------------------------------------------
8. Taxes on Income A reconciliation of the statutory federal
(Continued) income tax rate (benefit) and the effective
tax rate as a percentage of income (loss)
before taxes on income is as follows:
<TABLE>
<CAPTION>
April 27, April 28,
Years ended 1997 1996
-------------------------------------------------------------
<S> <C> <C>
Statutory rate (benefit) 34.0% (34.0)%
Operating income offset by
current tax loss generating
no current or deferred tax
effect (34.0) -
Operating losses generating
no current tax benefit - 34.0
-------------------------------------------------------------
Effective tax rate -% -%
=============================================================
</TABLE>
F-16
<PAGE>
Boston Restaurant Associates, Inc.
and Subsidiaries
Notes to Consolidated Financial Statements
- --------------------------------------------------------------------------------
9. Commitments and
Contingencies
Leases The Company is obligated under
noncancellable operating leases for its
leased restaurant locations, office,
commissary and warehouse space. Lease terms
range from five to twenty years and in
certain instances provide options to extend
the original term. Generally, the Company is
required to pay its proportionate share of
real estate taxes, insurance, common area
and other operating costs in addition to
annual base rent. Substantially all
restaurant leases provide for contingent
rentals based on sales in excess of
specified amounts. The Company also leases
equipment under capital leases.
The following is an analysis of leased
property under capital leases, included in
property and equipment:
<TABLE>
<CAPTION>
April 27, April 28,
1997 1996
-------------------------------------------------------------------------------
<S> <C> <C>
Equipment $190 000 $ -
-------------------------------------------------------------------------------
Less: accumulated amortization 19 724 -
-------------------------------------------------------------------------------
Net leased property under capital leases $170 276 $ -
===============================================================================
</TABLE>
F-17
<PAGE>
Boston Restaurant Associates, Inc.
and Subsidiaries
Notes to Consolidated Financial Statements
- --------------------------------------------------------------------------------
9. Commitments and
Contingencies
(Continued)
Leases Aggregate minimum rental requirements under
(Continued) capital leases and operating leases as of
April 27, 1997, are approximately
as follows:
<TABLE>
<CAPTION>
Capital Operating
Fiscal year ending Leases Leases
----------------------------------------------------------------------------
<S> <C> <C>
1998 $ 54 241 $1 524 000
1999 54 241 1 156 000
2000 54 241 896 000
2001 54 241 789 000
2002 13 560 764 000
Thereafter - 2 363 000
----------------------------------------------------------------------------
Total minimum lease payments 230 524 $7 492 000
------------------------------------------------------ ==========
Amount representing interest 60 824
------------------------------------------------------
Present value of net minimum
lease payments 169 700
Less current maturities 30 850
------------------------------------------------------
Total long term portion $138 850
======================================================
</TABLE>
Deferred rent liabilities of $67,024 and
$60,871 as of April 27, 1997 and April 28,
1996, respectively, were recorded in order
to recognize lease escalation provisions on
a straight-line basis for certain operating
leases.
Rent expense under all operating leases was
approximately $1,481,000 and $1,497,000
which included contingent rentals of
approximately $13,500 and $10,000 in 1997
and 1996, respectively.
F-18
<PAGE>
Boston Restaurant Associates, Inc.
and Subsidiaries
Notes to Consolidated Financial Statements
- --------------------------------------------------------------------------------
9. Commitments and
Contingencies
(Continued)
Lease Guarantees In connection with the sale of a restaurant
to a non-affiliated third-party, the Company
is a guarantor of the lease payments under
the leases assumed by the buyer expiring in
fiscal 2001. At April 27, 1997, the Company
is contingently liable for approximately
$684,000 under the guarantees. The Company
is of the opinion that the buyer of the
location will be able to perform under the
terms of the lease agreement and that no
payments will be required or losses will be
incurred by the Company under the
guarantees.
Employment The Company has an employment agreement with
Agreement and its President, which expires April 29, 1999.
Guaranty In addition to a base salary, adjusted
annually for cost-of-living changes and an
annual bonus, the agreement provides for a
performance bonus, as defined. The
commitment for future compensation,
excluding the performance bonus amounts to
$200,000 per year. The employment agreement
further provides that upon the termination
of the President for reasons, as defined,
the President will agree not to compete with
the Company for a three year period and the
Company will continue to pay the President's
then current base salary and annual bonus
for three years effective at the date of
such termination.
Litigation The Company is involved in various legal
matters in the ordinary course of its
business. Each of these matters is subject
to various uncertainties, and some of these
matters may be resolved unfavorably to the
Company. Management believes that any
liability that may ultimately result from
the resolution of these matters will not
have a material adverse effect on the
financial position of the Company.
F-19
<PAGE>
Boston Restaurant Associates, Inc.
and Subsidiaries
Notes to Consolidated Financial Statements
- --------------------------------------------------------------------------------
10. Stock Options At April 27, 1997, outstanding options
and Warrants consist of the following:
The Company has an Employee Stock Option
Plan (the "Employee Plan") and a Directors'
Stock Option Plan (the "Directors' Plan")
which was assumed by the Company in
connection with a fiscal 1994 acquisition.
Under both the Employee and Directors'
Plans, options are granted at the fair
market value on the date of the grant and
are exercisable in part beginning one year
after the grant date and ending six years
from the grant date under the Employee Plan
and five years after the grant date under
the Directors' Plan.
In July, 1994, the Company's stockholders
approved the 1994 Combination Stock Option
Plan (the "1994 Combination Plan") and the
1994 Non-Employee Director Stock Option Plan
(the "1994 Director Plan"), which replace
the previously existing Employee and
Directors' Plans.
The 1994 Combination Plan provides for the
grant of incentive stock options intended to
qualify under the requirements of the
Internal Revenue Code and options not
qualified as incentive stock options.
Incentive stock options may only be granted
to employees of the Company. Non-employees
contributing to the success of the Company
are eligible to receive non-qualified stock
options. The 1994 Combination Plan is to be
administered by a Committee designated by
the Board of Directors. Options under the
1994 Combination Plan may not be granted
after July 2004 and the exercise price shall
be at least equal to the fair market value
of the common stock at the grant date.
Incentive stock options may be granted to
holders of more than 10% of the Company's
common stock at an exercise price of at
least 110% of the fair market value of the
Company's common stock at the grant date.
The terms of the options granted are to be
determined by the Committee, but in no event
shall the term of any incentive stock option
extend beyond three months after the time a
participant ceases to be an employee of the
Company. No options may be exercised more
than five years after the date of the grant
for 10% stockholders, or ten years after the
date of grant for all other participants. A
total of 500,000 shares of common stock have
been reserved for issuance under the 1994
Combination Plan subject to shareholder
approval for the increase of 365,000 shares
in 1997.
F-20
<PAGE>
Boston Restaurant Associates, Inc.
and Subsidiaries
Notes to Consolidated Financial Statements
- --------------------------------------------------------------------------------
10. Stock Options The 1994 Director Plan provides for the
and Warrants granting to each eligible non-employee
(Continued) director of the Company an option to
purchase 5,000 shares of the Company's
common stock. Options granted under the 1994
Director Plan become exercisable over a five
year period at an exercise price equal to
the fair market value of the Company's
common stock at the grant date and expire
ten years from the grant date. A total of
500,000 shares have been reserved for
issuance under the 1994 Director Plan.
During fiscal 1997, the Company issued
options to the Company's President and
Treasurer to purchase an aggregate of
115,500 shares of the Company's common stock
in connection with guarantees of certain
notes payable (see Note 4) and a new lease
facility. Options for an aggregate of 75,600
shares are exercisable at $0.94 per share
and expire July 26, 2001. The remaining
options for an aggregate of 39,900 shares
are exercisable at $1.00 per share and
expire October 18, 2001.
During fiscal 1996, the Company issued
options to the Company's President and
Treasurer to purchase an aggregate of
357,000 shares of the Company's common
stock, in connection with their guarantees
of certain notes payable (see Note 4).
Options for an aggregate of 210,000 shares
are exercisable at $0.94 per share and
expire December 16, 2000. The remaining
options for an aggregate of 147,000 shares
are exercisable at $0.88 per share and
expire April 19, 2001.
F-21
<PAGE>
Boston Restaurant Associates, Inc.
and Subsidiaries
Notes to Consolidated Financial Statements
- --------------------------------------------------------------------------------
10. Stock Options
and Warrants
(Continued) Changes in options outstanding under the
Employee and Directors' Plans, the 1994
Plans and options issued in connection with
the guarantee of certain debt by the
Company's President and Treasurer are
summarized as follows:
<TABLE>
<CAPTION>
Weighted-Average
Shares Exercise Price
----------------------------------------------------------------------------------------
<S> <C> <C>
Balance, April 30, 1995 38 480 $4.58
Granted 432 000 0.92
Exercised - -
Cancelled or expired (43 500) 3.37
----------------------------------------------------------------------------------------
Balance, April 28, 1996 426 980 1.00
Granted 328 500 1.04
Exercised (400) 0.96
Cancelled or expired (1 480) 7.00
----------------------------------------------------------------------------------------
Balance, April 27, 1997 753 600 $1.01
========================================================================================
</TABLE>
As of April 27, 1997, options for 544,200
shares are exercisable at prices ranging
from $0.88 to $4.38. At April 28, 1996,
options for 375,230 shares were exercisable
at prices ranging from $0.88 to $7.00.
F-22
<PAGE>
Boston Restaurant Associates, Inc.
and Subsidiaries
Notes to Consolidated Financial Statements
- --------------------------------------------------------------------------------
10. Stock Options The following table summarizes information
and Warrants about stock options outstanding at
(Continued) April 27, 1997:
<TABLE>
<CAPTION>
Options Outstanding
--------------------------------------------------------------------------------
Weighted-
Average Weighted-
Range of Number Remaining Average
Exercise Outstanding at Contractual Exercise
Prices April 27, 1997 Life (years) Price
--------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
$ 4.38 3 500 1.0 $4.38
2.38 5 000 3.5 2.38
1.56 10 000 3.8 1.56
0.88 - 1.25 735 100 4.8 0.97
--------------------------------------------------------------------------------
$ 0.88 - 4.38 753 600 4.77 $1.01
================================================================================
Options Exercisable
--------------------------------------------------------------------------------
Weighted-
Range of Number Average
Exercise Exercisable at Exercise
Prices April 27, 1997 Price
--------------------------------------------------------------------------------
$ 4.38 3 500 $4.38
2.38 2 000 2.38
1.56 4 000 1.56
0.88 - 1.25 534 700 .94
--------------------------------------------------------------------------------
$ 0.88 - 4.38 544 200 $ .97
================================================================================
</TABLE>
At April 27, 1997, warrants and units
outstanding, all of which are exercisable,
consist of the following:
(a) Warrant for the purchase of 210,000
shares of common stock, at an exercise
price of $2.00 per share expiring
April 29, 1999.
(b) Warrants to purchase 1,708,000 shares
of common stock at a purchase price of
$3.20 per share from March 8, 1997
through September 7, 1999, issued in
connection with the Company's
September 7, 1994 public offering.
F-23
<PAGE>
Boston Restaurant Associates, Inc.
and Subsidiaries
Notes to Consolidated Financial Statements
- --------------------------------------------------------------------------------
10. Stock Options (c) Warrants to purchase 75,000 units
and Warrants (375,000 shares) at a purchase price
(Continued) of $3.20 per share, expiring September
7, 1999, issued in connection with the
Company's September 7, 1994 public
offering.
(d) Warrants to purchase 25,000 and 17,500
shares of common stock at a purchase
price of $2.00 per share through June
28, 1998 and October 19, 1998,
respectively, or at a purchase price
of $2.80 per share from June 29, 1998
through December 28, 2000 and October
20, 1998 through April 19, 2001,
respectively, issued to the bank in
connection with the issuance of the
notes payable (see Note 4).
(e) Warrants to purchase 350,000 shares of
common stock at an exercise price of
$3 per share, expiring December 31,
2006, issued in consideration for
brokerage services connected with the
issuance of the convertible
subordinated debentures (see Notes 6
and 11).
The convertible subordinated debentures with
an outstanding balance of $1,118,750 as of
April 27, 1997 are convertible into common
shares at a conversion price of $1.25 per
share. Accordingly, 895,000 shares have been
reserved for conversion. Additionally, the
Company is authorized to issue warrants for
305,000 shares of common stock upon the
issuance of the remaining $381,250 of
convertible debentures and warrants for
150,000 shares for the related brokerage
services (see Note 6).
There were 5,516,250 shares reserved with
respect to the above options, warrants,
convertible debentures and the anti-dilution
provisions related to a fiscal 1994
acquisition at April 27, 1997.
During fiscal 1997 and 1996, the following
units, warrants and options expired:
(a) Options to purchase 1,480 shares of
common stock at $7.00 per share.
(b) Options to purchase 18,500 shares of
common stock at prices ranging from
$3.44 to $13.30 per share granted
under the Employee and Directors'
Plans.
F-24
<PAGE>
Boston Restaurant Associates, Inc.
and Subsidiaries
Notes to Consolidated Financial Statements
- --------------------------------------------------------------------------------
10. Stock Options (c) Options to purchase 25,000 shares of
and Warrants common stock at $0.94 per share
(Continued) granted under the 1994 Combination
Plan.
(d) Warrants for the purchase of 6,000
shares of common stock at $5.00 per
share.
At April 27, 1997, the Company has four
stock-based compensation plans, which are
described above. The Company accounts for
its stock-based compensation plans using the
intrinsic value method. Accordingly, no
compensation cost has been recognized for
its stock option plans. Had compensation
cost for the Company's four stock option
plans and options issued in connection with
the guarantee of certain debt been
determined based on the fair value at the
grant dates for awards under those plans
consistent with the method of FASB Statement
123, Accounting for Stock-Based
Compensation, the Company's net income
(loss) and earnings (loss) per share would
have been adjusted to the pro forma amounts
indicated below:
<TABLE>
<CAPTION>
April 27, April 28,
1997 1996
---------------------------------------------------------------------------------
<S> <C> <C>
Net income (loss) As reported $ 12 263 $(3 107 900)
Pro forma (55 769) (3 262 573)
Earnings (loss) As reported $ 0.00 $ (.62)
per share Pro forma (0.01) (.65)
</TABLE>
In determining the pro forma amounts above,
the Company estimated the fair value of each
option granted using the Black-Scholes
option pricing model with the following
weighted-average assumptions used for grants
in 1997 and 1996, respectively: dividend
yield of 0% for both years and expected
volatility of 35% for both years, risk free
rates ranging from 6.3% to 6.6% for 1997,
and 5.5% to 6.5% for 1996, and expected
lives ranging from 5 to 10 years for both
1997 and 1996. The weighted average fair
value of options granted in fiscal 1997 and
1996 were $90,000 and $172,000,
respectively.
F-25
<PAGE>
Boston Restaurant Associates, Inc.
and Subsidiaries
Notes to Consolidated Financial Statements
- --------------------------------------------------------------------------------
11. Supplemental Cash Cash paid for interest and income taxes are
Flow Information as follows:
<TABLE>
<CAPTION>
April 27, April 28,
Years ended 1997 1996
----------------------------------------------------------------------------------
<S> <C> <C>
Interest $127 185 $29 166
Income taxes - -
Supplemental schedule of noncash operating
and financing activities are as follows:
April 27, April 28,
Years ended 1997 1996
----------------------------------------------------------------------------------
Stock options and warrants issued
in exchange for services $ 89 030 -
Capital leases entered into during
the year 190 000 -
</TABLE>
12. Assets Impaired, Charges included in the results of
Assets to be operations of $1,355,034 in fiscal 1996 are
Disposed of and summarized as follows:
Restaurant
Closures
(a) During fiscal 1997, the Company sold a
restaurant closed since June 1995. A
charge of $1,049,835 for the closed
restaurant is included in the results
of operations for the year ended April
28, 1996 for the write-down to net
realizable value of leasehold
improvements ($216,000), goodwill
($635,000) and other assets ($96,000)
and an accrual for buy-out of the lease
($102,000). The consolidated balance
sheet at April 28, 1996 includes assets
of $265,000, and liabilities of
$240,000, related to this location.
(b) A charge of $159,228 is included in the
results of operations for the year
ended April 28, 1996 for the write-down
resulting from the impairment of
leasehold improvements ($53,000) and
other assets and expenses ($106,000) at
an operating restaurant held for sale.
F-26
<PAGE>
Boston Restaurant Associates, Inc.
and Subsidiaries
Notes to Consolidated Financial Statements
- --------------------------------------------------------------------------------
12. Assets Impaired, (c) A charge of $145,971 is included in
Assets to be the results of operations for the year
Disposed of and ended April 28, 1996 for the write-down
Restaurant resulting from the impairment of
Closures leasehold improvements at one of the
(Continued) Company's pizza restaurants.
(d) In May 1995, the Company notified the
landlord of its Cambridge,
Massachusetts restaurant that it was
exercising its option to cancel the
lease and fulfill its guarantee with
the payment of six months rent. On May
26, 1995, the restaurant was closed.
The historic and projected cash flows for
these restaurants were not sufficient for
the Company to recover the historical
carrying amount of those assets. The assets
were revalued at their estimated fair market
value based upon sales of comparable assets
in the case of leasehold improvements, and
at zero for the goodwill, covenant and
favorable lease, based upon an estimate of
the amount recoverable.
13. Subsequent Events In July 1997, the Company entered into a
lease agreement for a new pizza restaurant
location. The lease agreement is for a term
of ten years and requires an aggregate of
approximately $1,000,000 of minimum lease
payments over the lease term.
F-27
<PAGE>
EXHIBIT B
---------
PROXY STATEMENT FILING AUGUST 4, 1997
<PAGE>
Exhibit B
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS OF
BOSTON RESTAURANT ASSOCIATES, INC.
TO BE HELD ON 12 SEPTEMBER, 1997
---------------
The Annual Meeting of Stockholders of Boston Restaurant Associates,
Inc. will be held on 12 September, 1997 at 10:00 a.m., local time, at the
offices of Brown, Rudnick, Freed & Gesmer, 18th Floor, One Financial Center,
Boston, Massachusetts 02111, for the following purposes:
1. To elect seven (7) directors to serve for the ensuing year and until
their successors are duly elected.
2. To consider and act upon a proposal to amend the Company's 1994
Employee Stock Option Plan.
3. To ratify the appointment of BDO Siedman LLP auditors for fiscal
year 1998.
4. To consider and act upon any matter incidental to the foregoing
purposes and any other matters, which may properly come before the Meeting, or
any adjourned session thereof.
The Board of Directors has fixed 4 August, 1997 as the record date for
determining the stockholders entitled to notice of, and to vote at, the Meeting.
By Order of the Board of Directors
GORDON R. PENMAN, Secretary
Boston, Massachusetts
7 August, 1997
YOUR VOTE IS IMPORTANT
YOU ARE URGED TO SIGN, DATE AND PROMPTLY RETURN THE ACCOMPANYING FORM OF PROXY,
SO THAT IF YOU ARE UNABLE TO ATTEND THE MEETING YOUR SHARES MAY NEVERTHELESS BE
VOTED. EVEN IF YOU HAVE GIVEN YOUR PROXY, THE PROXY MAY BE REVOKED AT ANY TIME
PRIOR TO EXERCISE BY FILING WITH THE SECRETARY OF THE COMPANY A WRITTEN
REVOCATION, BY EXECUTING A PROXY WITH A LATER DATE, OR BY ATTENDING AND VOTING
AT THE MEETING.
<PAGE>
BOSTON RESTAURANT ASSOCIATES, INC
PROXY STATEMENT
FOR THE ANNUAL MEETING OF STOCKHOLDERS
To Be Held On 12 September, 1997
This proxy statement is furnished in connection with the solicitation
of proxies by the Board of Directors of Boston Restaurant Associates, Inc., a
Delaware corporation (the "Company") with its principal executive offices a 999
Broadway, Saugus, Massachusetts 01906, for use at the Annual Meeting of
Stockholders to be held on 12 September, 1997 and at any adjournment or
adjournments, thereof (the "Meeting"). The enclosed proxy relating to the
Meeting is solicited on behalf of the Board of Directors of the Company and the
cost of such solicitation will be borne by the Company. It is expected that this
proxy statement and the accompanying proxy will be mailed to stockholders on or
about August 7, 1997
Certain of the officers and employees of the Company may solicit
proxies by correspondence, telephone or in person, without extra compensation.
The Company may also pay to banks, brokers, nominees and certain other
fiduciaries their reasonable expenses incurred in forwarding proxy material to
the beneficial owners of the securities held by them.
Only stockholders of record at the close of business on 4 August, will
be entitled to receive notice of, and to vote at, the Meeting. As of that date,
there were outstanding and entitled to vote 5,015,693 shares of Common Stock,
$.01 par value (the "Common Stock") of the Company. Each such stockholder is
entitled to one vote for each share of Common Stock so held and may vote such
shares either in person or by proxy.
The enclosed proxy, if executed and returned, will be voted as directed
on the proxy or, in the absence of such direction, for the election of the
nominees as directors and proposal No. 2 and No. 3. If any other matters shall
properly come before the Meeting, the enclosed proxy will be voted by the
proxies in accordance with their best judgment. The proxy may be revoked at any
time prior to exercise by filing with the Secretary of the Company a written
revocation, by executing a proxy with a later date, or by attending and voting
at the Meeting.
2
<PAGE>
PROPOSAL NO. 1
ELECTION OF DIRECTORS
At the Meeting, seven directors are to be elected to serve until the
1998 Annual Meeting of Stockholders and until their respective successors have
been duly elected and qualified. The persons listed below in the following table
have been nominated by the Board of Directors for election as directors.
All nominees are currently directors of the Company. It is the
intention of the persons named as proxies to vote for the election of the
nominees. In the unanticipated event that any such nominee should be unable to
serve, the persons named as proxies will vote the proxy for such substitutes, if
any, as the present Board of Directors may designate. The nominees have not been
nominated pursuant to any arrangement or understanding with any person.
The following table sets forth certain information with respect to the
nominees.
Director
Name Age Position Since
- ---- --- -------- -----
George R. Chapdelaine 52 Chief Executive Officer, 1994
President, and Director
John P. Polcari, Jr. 66 Treasurer and Director 1994
Terrance Smith (2) 51 Director 1990
Richard J. Reeves(1)(2) 50 Director 1989
Joseph J. Caruso(1) 54 Director 1994
Roger Lipton (1) 56 Director 1996
Lucille S. Salhany 51 Director 1996
- -------------
(1) Member of the Compensation Committee.
(2) Member of the Audit Committee.
George R. Chapdelaine was elected President, Chief Executive Officer
and a director of the Company in April 1994 upon the consummation of the April
29, 1994 acquisition of 60% of the then
3
<PAGE>
outstanding Common Stock of the Company by the stockholders of Pizzeria Regina,
Inc. ("PRI") (the "Capucino's Acquisition"). Following the Capucino's
Acquisition, the Company changed its name from Capucino's, Inc. to Boston
Restaurant Associates, Inc. and PRI changed its name from Boston Restaurant
Associates, Inc. to Pizzeria Regina, Inc. PRI is currently operating as a wholly
owned subsidiary of the Company. Mr. Chapdelaine joined the predecessor of PRI
in 1982 and from that time until April 1994 served as its and the PRI's
President, Chief Executive Officer and a director. Prior to that time, Mr.
Chapdelaine worked in the food service industry in various capacities, including
as an independent marketing consultant, a general manager of the Food Service
division for H.P. Hood, Inc. and a sales manager for Chiquita Brands, a
subsidiary of United Brands. Mr. Chapdelaine holds an MBA from Clark University
and graduated with a BS in Hotel and Restaurant Management from Oklahoma State
University.
John P. Polcari, Jr. was elected Treasurer and a director of the
Company in April 1994 upon the consummation of the Capucino's Acquisition. A
founder of PRI, Mr. Polcari served as its Chairman of the Board until April
1994, at which time he commenced serving as the Treasurer and a director of the
Company.
Lucille Salhany has been the President and Chief Executive Officer of
the United Paramount Network since September 1994. Previously, Ms. Salhany
served in various capacities at Fox Broadcasting Company commencing in July
1991, including as its chairman from January 1993 until her resignation in the
summer of 1994. Prior to joining Fox, Ms. Salhany served in various capacities
at Paramount Pictures. Ms. Salhany is married to Mr. Polcari, a director, and
the Treasurer of the Company.
Richard J. Reeves cofounded the Company in May 1989 and served as a
director from that time until May 1993. In July 1993, Mr. Reeves rejoined the
Company's Board of Directors. From May 1989 to July 1991, Mr. Reeves served as
the Company's President and Chief Operating Officer. Since July 1991, Mr. Reeves
has been engaged in restaurant development as a franchisee of various
restaurants. These restaurants are not competitive with those owned and operated
by the Company. From September 1988 to March 1989, Mr. Reeves served as an
executive officer and principal stockholder of RSMG, Inc. ("RSMG") and from
March 1985 until April 1989 occupied similar positions with Reeves Associates,
Inc., both of which were privately held restaurant development companies.
Terrance A. Smith was elected a director of the Company in August 1990.
From 1988 to the present, Mr. Smith has been President of Chi-Chi's
International Operations, Inc.
4
<PAGE>
Joseph J. Caruso was elected a director of the Company in connection
with the Company's 1994 public offering. Mr. Caruso is the President of Bantam
Group, Inc., a business advisory firm founded by Mr. Caruso in 1986. Mr. Caruso
is presently a member of the board of directors of Audiofile, Inc., Corion
Corporation, Haymarket Bank (BRAI has a credit facility with Haymarket Bank),
Holometrix, Inc. and Tytronics, Inc. and formerly served on the board of
directors of Coffee Connection, Inc. from 1991 to 1994. Mr. Caruso is a graduate
of Northeastern University and the Harvard Business School.
Roger Lipton was elected a director of the Company in July 1996. Since
February 1995, Mr. Lipton has been President of Lipton Financial Services, Inc.,
an investment banking firm specializing in the restaurant, franchising and
retailing industries, and also has been employed by Axiom Capital Management,
Inc. an NASD broker/dealer, where he is a Managing Director. From 1981 until
February 1995 he was Managing Director of the Lipton Financial Services Division
of Ladenburg, Thalmann & Co., Inc., also an investment banking firm.
The term of office of each director of the Company ends at the next
annual meeting of the Company's stockholders or when his successor is elected
and qualified.
Meetings of the Board of Directors
The Board of Directors held five meetings during the fiscal year ended
April 27, 1997. The Board of Directors also acted on occasions by unanimous
written consent in lieu of special meetings. Each current director, other than
Mr. Polcari and Ms. Salhany, attended at least 75% of the aggregate number of
all meetings of the Board of Directors and committees of which he was a member
during such fiscal year.
The Board of Directors has an Audit Committee, currently composed of
Messrs. Reeves, and Smith. The functions performed by this Committee include
recommending to the Board of Directors the engagement of the independent
auditors, reviewing the scope of internal controls and reviewing the
implementation by management of recommendations made by the independent
auditors.
The Board of Directors has a Compensation Committee, currently composed
of Messrs. Caruso, Lipton and Reeves. The functions of the Compensation
Committee include determining salaries, incentive plans, benefits and overall
compensation.
5
<PAGE>
The Audit and Compensation Committees were established in June 1994.
The Compensation Committee held one meeting during the fiscal year ended April
27, 1997 and the Audit Committee met on one occasion with the Company's
independent auditors during the fiscal year ended April 27, 1997.
The Board of Directors does not have a nominating committee.
Nominations of directors are considered by the whole Board of Directors.
Compensation of Directors
Directors of the Company do not receive cash compensation for their
services as directors. The Company provides health insurance benefits to its
directors and reimburses its directors for their out-of-pocket expenses in
attending Board meetings. In addition, nonemployee directors are eligible for
the grant of stock options under the 1994 Nonemployee Directors Stock Option
Plan. Messrs. Caruso, Reeves, and Smith each received options to purchase 20,000
shares of common stock in fiscal l997 under Non-employee Director Stock Option
Plan. In addition, Mr. Smith, having served five years as a director, received
options to purchase 10,000 shares of common stock. The Company also enters into
indemnification agreements with each of its directors. See "Executive
Compensation-Limitation of Officers' and Directors' Liability; Indemnification
Agreements".
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information regarding the
beneficial ownership of the Company's Common Stock as of 25 July, 1997 and (i)
each person who is known by the Company to own beneficially more than five
percent of the outstanding shares of Common Stock, (ii) each director and
nominee director of the company, (iii) each person named in the Summary
Compensation Table, and (iv) all current executive officers and directors of the
Company as a group. Unless otherwise indicated below, to the knowledge of the
Company all persons listed below have sole voting and investment power with
respect to their shares of Common Stock except to the extent shared by spouses
under applicable law.
6
<PAGE>
Percentage
Number of Shares of Outstanding
Name and Address Beneficially Owned Shares
- ---------------- ------------------ --------------
George R. Chapdelaine (1)(2) 1,577,650 29.89%
c/o Boston Restaurant
Associates, Inc.
999 Broadway
Saugus, MA 01906
John P. Polcari, Jr. (1)(3) 1,498,312 28.67%
c/o Boston Restaurant
Associates, Inc.
999 Broadway
Saugus, MA 01906
Richard J. Reeves(4) 90,300 1.80%
c/o Boston Restaurant
Associates, Inc.
999 Broadway
Saugus, MA 01906
Terrance A. Smith (5) 9,000 *
c/o Boston Restaurant
Associates, Inc.
999 Broadway
Saugus, MA 01906
Joseph J. Caruso(6) 27,000 *
c/o Boston Restaurant
Associates, Inc.
999 Broadway
Saugus, MA 01906
Lucille Salhany(7) 78,150 1.56%
c/o Boston Restaurant
Associates, Inc.
999 Broadway
Saugus, MA 01906
Anthony Buccieri (11) 10,000 *
c/o Boston Restaurant
Associates, Inc.
999 Broadway
Saugus, MA 01906
7
<PAGE>
Fran V. Ross (11) 10,000 *
c/o Boston Restaurant
Associates, Inc.
999 Broadway
Saugus, MA 01906
Roger Lipton(8) 713,155 13.76%
983 Park Avenue
New York, NY 10028
Dolphin Management, Inc.(9) 453,000 8.98%
129 East 17th Street
New York, NY 10003
Jordan American Holdings, Inc.(10) 1,259,545 23.48%
1875 Ski Time Square Dr., Ste. 1
Steamboat Springs, CO 80487
All current executive officers and
directors as a group
(9 persons)(1)(2)(3)(4)(5)(6)(7) (2,337,730 total) 38.47%
(8)(11)
- ----------------------
*Less than one percent
(1) Mr. Chapdelaine and Mr. Polcari are the Voting Trustees of a Voting Trust
that holds 1,265,150 shares pursuant to a certain Amended and Restated
Voting Trust Agreement dated April 28, 1994 (the "Voting Trust Agreement").
As the Voting Trustees, Mr. Chapdelaine and Mr. Polcari share exclusive
voting power with respect to all shares held in the Voting Trust. Mr.
Chapdelaine and Mr. Polcari are also beneficiaries of the Voting Trust,
each having beneficial ownership of 41.2% of the Voting Trust assets. Such
beneficial ownership in the Voting Trust would entitle each of Mr.
Chapdelaine and Mr. Polcari to 522,390 shares of the Company's Common Stock
in the event the Voting Trust assets were distributed to the beneficiaries
thereof. In addition, relatives of Mr. Polcari have beneficial ownership of
the remaining 17.4% of the Voting Trust assets (approximately 220,370
shares)(54,988 Lucille Salhany) and (165,382 Anthony and Mary Polcari). Mr.
Chapdelaine disclaims beneficial ownership of the approximately 742,760
shares of Common Stock allocated to beneficiaries of the Voting Trust other
than Mr. Chapdelaine, and Mr. Polcari disclaims beneficial ownership of the
approximately 742,760 shares of Common Stock allocated to the beneficiaries
of the Voting Trust other than Mr. Polcari. The Voting Trust will dissolve
on
8
<PAGE>
April 28, 2004 unless earlier dissolved pursuant to the Voting Trust
Agreement.
(2) Includes options to purchase 262,500 shares issuable pursuant to stock
options exercisable within 60 days of 25 July, 1997. Also includes 50,000
option to purchase common stock subject to shareholder approval of the
proposed amendment to the Employee Plan.
(3) Includes approximately 68,670 shares issued to Lucille Salhany, Mr.
Polcari's wife, and Mr. Polcari, as joint tenants with rights of
survivorship in connection with the forgiveness of $282,500 of the
Company's indebtedness to Ms. Salhany. Also includes 210,000 shares
issuable pursuant to currently exercisable stock options, and 9,880 shares
held by Ms. Salhany, Mr. Polcari's wife, for the benefit of certain family
members.
(4) Includes options to purchase 7,000 shares issuable pursuant to current
exercisable stock options.
(5) Includes options to purchase 9,000 shares issuable to pursuant to current
exercisable stock options.
(6) Includes 10,000 shares held by Bantam Group, Inc., a business advisory firm
controlled by Mr. Caruso and options to purchase 7,000 shares issuable
pursuant to currently exercisable stock options.
(7) Excludes 1,265,150 shares held by Mr. Polcari as a Voting Trustee under the
Voting Trust. See note (1) above. Includes 9,880 shares held by Ms.
Salhany, Mr. Polcari's wife, for the benefit of certain family members.
(8) Based on Schedule 13D provided to the Company and discussions with Mr.
Lipton. Includes 166,000 shares issuable pursuant to currently exercisable
warrants.
(9) Based upon a Schedule 13D provided to the Company. Includes 30,000 shares
issuable pursuant to currently exercisable warrants.
(10) Based on a Schedule 13G provided to the Company. F/K/A Equity Asset
Management. Also includes 350,000 warrants issued by Boston Restaurant
Associates, Inc. 31 December, 1996.
(11) Includes 9,900 shares issuable to executive officers pursuant to currently
exercisable stock options.
9
<PAGE>
Management
The names of the Company's executive officers who are not directors of
the Company, and certain biographical information furnished by them, are set
forth below:
Name Age Title
- ---- --- -----
Anthony A. Buccieri 42 Vice President Operations
Fran Ross 50 Vice President of Corporate
Administration, Chief
Financial Officer
Anthony A. Buccieri was appointed Vice President of Operations in April
1994. Mr. Buccieri joined the predecessor of PRI in 1974 and has served PRI in
various capacities since that date, including as operations supervisor,
assisting in the opening of all Pizzeria Regina outlets since he joined PRI in
1983. Mr. Buccieri attended the University of Massachusetts.
Fran Ross was appointed the Company's Vice President of Corporate
Marketing in February 1995 and Vice President of Corporate Administration and
Chief Financial Officer in October 1996. Ms. Ross was Vice President of
Marketing for Back Bay Restaurant Group from December 1993 until December 1994
and for Legal Seafoods from November 1992 until December 1993. Ms. Ross holds an
A.S. from the Culinary Institute of America, AB in Biochemistry from Emmanuel
College and attended graduate school at Cornell University.
Executive Compensation
The following Summary Compensation Table sets forth the compensation
during the last three fiscal years of each person who has served as the Chief
Executive Officer during the last fiscal year and the four most highly
compensated executive officers of the Company, if any, whose annual salary and
bonus exceeded $100,000 for services in all capacities to the Company during the
last fiscal year.
10
<PAGE>
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
Annual Compensation Long-Term Compensation(2)
Awards Payouts
Other Securities All
Annual Restrict Under- Other
Name and Fiscal Compen- Stock Lying LTIP Compen-
Principal Year Salary Bonus sation Award(s) Options Payouts sation
Position Ended ($) ($) ($) ($) ($) ($) ($)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
George R. 4/27/97 116,900 0
Chapdelaine 4/28/96 183,600 35,000
President and 4/30/95 177,000 35,000
CEO(1)
</TABLE>
(1) Mr. Chapdelaine was entitled to a salary of $190,464 plus a bonus of
$35,000 in FY 1997. However, he elected not to receive $73,564 of his
salary and his $35,000 bonus in FY 1997 only.
(2) Does not include stock options granted to Mr. Chapdelaine for this personal
guarantee of financial obligations of the Company. See "Certain
Relationships and Related Transactions - Guarantee of Indebtedness of the
Company; Stock Options."
Employment Contract
The Company and Mr. Chapdelaine, the Chief Executive Officer and
President of the Company, have entered into a five year employment agreement
which provides for an initial annual salary of $165,000, subject to increase
after the first year of employment in the discretion of the Compensation
Committee of the Company's Board of Directors. The employment agreement also
provides that Mr. Chapdelaine will be entitled to an annual cash bonus of
$35,000 as well as a performance bonus based upon yearly projections for the
Company's performance. Mr. Chapdelaine will also be provided with an automobile
allowance of $12,000 plus the cost of annual insurance and parking and such
other employee benefits as may be generally available to employees or officers
of the Company. (See note (1) above regarding FY 1997, as a singular, one-time
event).
Under the terms of the employment agreement, if Mr. Chapdelaine's
employment with the Company is terminated by the Company without cause, or if
Mr. Chapdelaine terminates his employment with the Company for good reason
(either a material reduction in his overall level of responsibility or the
relocation of the Company's executive offices to a location that is more than 35
miles from Boston, Massachusetts, in each case without his consent) or due to a
change in control of the Company, Mr. Chapdelaine has agreed not to compete with
the Company for a period of three years from the date of such termination,
provided that the Company shall continue to pay Mr.
11
<PAGE>
Chapdelaine his then current base salary and annual cash bonus of $35,000
payable monthly, during the three year noncompetition period.
Mr. Chapdelaine's employment agreement also contains noncompetition and
confidentiality provisions. The noncompetition provision prohibits Mr.
Chapdelaine from directly or indirectly competing with the Company as long as he
is an employee of the Company and for a period of three years thereafter. The
confidentiality provision provides that Mr. Chapdelaine may never, other than in
furtherance of the business of the Company or in response to a court order,
disclose proprietary information of the Company.
Bonus Program
The Company has adopted an incentive program under which key
contributors, such as store managers, selected by the Compensation Committee
will be paid cash bonuses. The aggregate amount of these bonuses will be based
upon a formula pertaining to the financial performance of the Company. Bonuses,
if any, will be allocated by the Compensation Committee among the individual
employees based upon their performance during the year. The Company is also
considering a similar bonus program for executive officers and senior
management.
Limitation of Officers' and Directors' Liability; indemnification agreements
As permitted by Delaware law, the Company's Certificate of
Incorporation contains an article limiting the personal liability of directors.
The Certificate of Incorporation provides that a director of the Company shall
not be personally liable for monetary damages for a breach of fiduciary duty as
a director, except for liability (i) for any breach of the director's duty of
loyalty, (ii) for acts or omissions not in good faith or which involve
intentional misconduct of a knowing violation of law, (iii) under Section 174 of
the General Corporation Law of the State of Delaware, which prohibits the
unlawful payment of dividends or the repurchase or redemption of stock or (iv)
for any transaction from which the director derived an improper personal
benefit. This article is intended to afford directors additional protection, and
limit their potential liability, from suits alleging a breach of the duty of
care by a director. The Company believes this article will assist it in securing
the services of directors who are not employees of the Company. As a result of
the inclusion of such a provision, holders of the Company's Common Stock may be
unable to recover monetary damages against directors for actions taken by them
which constitute negligence or gross negligence or which are in violation of
their fiduciary duties, although it may be possible to obtain
12
<PAGE>
injunctive or other equitable relief with respect to such actions. If equitable
remedies are found not to be available for any particular case, holders of the
Company's Common Stock may not have any effective remedy against the challenged
conduct.
The Company is also party to an Indemnification Agreement with each of
its present directors and certain executive officers and may enter into such
agreements with any executive officer, director, employee, agent or fiduciary
designated by the Board of Directors. Each Indemnification Agreement provides
that the Company will indemnify the indemnitee against expenses, including
reasonable attorneys' fees, judgments, penalties, fines and amounts paid in
settlement actually and reasonable incurred by him in connection with any civil
or criminal action or administrative proceeding arising out of the performance
of his duties. Such indemnification is available if the indemnitee acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Company and with respect to any criminal action, had no
reasonably cause to believe that his conduct was unlawful. The Indemnification
Agreement will also require that the Company indemnify the party thereto in all
cases to the fullest extent permitted by applicable law.
Each Indemnification Agreement requires the Company to advance
litigation expenses at the request of the party seeking indemnification, whether
prior to or after final resolution of a proceeding, provided that he undertakes
to repay such advances if it is ultimately determined that he is not entitled to
indemnification for his expenses. The advance of litigation expenses will
thereby be mandatory upon satisfaction of certain conditions by the indemnitee.
Each Indemnification Agreement permits the executive officer, director
or the person that is party thereto to bring suit to seek recovery of amounts
due under the Indemnification Agreement and to recover the expenses of such a
suit if he is successful.
Stock Options
The following table sets forth certain information with respect to the
grants, exercises and fiscal year-end values of stock options to purchase shares
of the Company's Common Stock for the named executive officers during the last
fiscal year.
13
<PAGE>
OPTION GRANTS IN LAST FISCAL YEAR
<TABLE>
<CAPTION>
Number of Percent of
Securities Options
Underlying Granted to
Options Employees Exercise of
Granted (1) in Fiscal Base Price
Name (#) Year ($/Sh) Expiration Date
- ---- ----------- ---------- ------------ ---------------
<S> <C> <C> <C> <C>
George R. Chapdelaine 84,000 40.1% 1.125 10/18/01
</TABLE>
(1) These stock options granted to Mr. Chapdelaine for this personal guarantee
of financial obligations of the Company. See "Certain Relationships and
Related Transactions - Guarantee of Indebtedness of the Company; Stock
Options."
AGGREGATED OPTION EXERCISES IN LAST
FISCAL YEAR AND FISCAL YEAR END OPTION VALUES
<TABLE>
<CAPTION>
Number of
Shares of
Common
Stock Value of
Underlying Unexercised
Unexercised In-the-Money
Options at Options at
April 27, April 27,
Shares Value 1997(#) 1997($)
Acquired on Realized Exercisable/ Exercisable/Un-
Name Exercise(#) ($)(1) Unexercisable exercisable(1)
- ---- ----------- ----------- ------------- --------------
<S> <C> <C> <C> <C>
George R. Chapdelaine 0 0 262,500/0 328,125/0
</TABLE>
- --------------
(1) Based upon the closing price of the Company's Common Stock on April 27,
1997 as reported on the NASDAQ Small-Cap Market of $1.125 the respective
option exercise price.
PROPOSAL NO. 2
PROPOSAL TO AMEND THE 1994 EMPLOYEE
EMPLOYEE STOCK OPTION PLAN
In March 1997, the Board of Directors adopted, pending approval by the
stockholder on 12 September, 1997, an amendment to the 1994 Employee Stock
Option Plan (the "Employee Plan"). The employees Plan was initially adopted in
May 1994. As set
14
<PAGE>
forth in further detail below, the proposed amendment to the Employee Plan
increases the number of shares reserved for issuance under the Employees Plan
from 135,000 to 500,000 shares and provides for the issuance of additional
options to the Company's employees.
1994 EMPLOYEE COMBINATION STOCK OPTION PLAN
In 1994, the Company adopted the Employee Plan. The purposes of the
Employee Plan is to provide long-term incentives and rewards to the Company's
employees, officers, directors, advisors and consultants by granting them a
permanent stake in the growth and prosperity of the Company. The Employee Plan,
as amended in 1996, permits the issuance of options to purchase up to 135,000
shares of common stock (net of cancellations).
Under the Employee Plan, the Company may grant both incentive stock
options intended to qualify under Section 422 of the Internal Revenue Code of
1986, as amended ("incentive stock options"), and other options which are not
qualified as incentive stock options ("nonqualified stock options"). Incentive
stock options may only be granted to persons who are key employees of the
Company at the time of grant, which may include officers and directors who are
also employees. Nonqualified stock options may be granted to persons who are
officers, directors or key employees of or consultants or advisors to, the
Company at the time of grant, provided that directors who are not employees of
the Company are not eligible to participate in the Employee Plan. Currently,
there are approximately 150 employees of the Company who may determined to be
key employees entitled to grants of options under the Employee Plan.
The Employee Plan will be administered by the Compensation Committee of
the Board of Directors. Subject to the terms of the Employee Plan, the
Compensation Committee determines the persons to whom options are granted, the
number of shares covered by the option, the term of any option, and the time
during which any option is exercisable.
If approved, a total of 500,000 shares of Common Stock will be reserved
for issuance under the Employee Plan. Currently 135,000 shares are reserved for
issuance. The shares issued may include treasury shares, authorized but unissued
shares and shares previously reserved for issuance upon exercise of options
which have expired or terminated. Shares subject to an option that ceases to be
exercisable for any reason will be available for subsequent option grants.
Nonqualified stock options may be granted at an exercise price greater
than or lesser than the fair market value of the Common Stock on the date of
grant, at the discretion of the
15
<PAGE>
Compensation Committee. Incentive stock options, however, may not be granted at
less than the fair market value of the Common Stock and may be granted to
holders of more than 10% of the Common Stock only at an exercise price of at
least 110% of the fair market value of the Common Stock on the date of grant.
The exercise price may be paid in cash or, in the discretion of the Compensation
Committee, (i) in shares of Common Stock (valued at the fair market value at the
date of exercise), (ii) by delivery of any other property valued at its fair
market value at the time of exercise or (iii) by any combination of cash, Common
Stock and other property.
With respect to incentive stock options, to the extent that the
aggregate fair market value of the Common Stock (measured at the time of grant)
with respect to which incentive stock options are first exercisable by an
employee during any calendar year under the 1994 Plan and any other plan of the
Company providing incentive stock options exceeds $100,000, such incentive stock
options shall be treated as nonqualified options.
These options generally become exercisable at 20% per year over five
years. Options under the Employee Plan may not be granted after ten years from
the date of stockholder approval of the 1994 Plan. No option under the Employee
Plan may be exercised subsequent to ten years from the date of grant (five years
after the date of grant for incentive stock options granted to holders of more
than 10% of the Common Stock). No incentive stock option granted pursuant to the
Employee Plan may be exercised more than three months after the option holder
ceases to be an employee of the Company, except that in the event of death or
permanent and total disability (as defined in the Internal Revenue Code of 1986
(the "Code") of the option holder, the option may be exercised by the holder of
his estate for a period of up to one year after the date of such death or
permanent total disability. Options granted under the 1994 Plan may not be
assigned or transferred except as permitted in the discretion of the
Compensation Committee.
The Employee Plan may be amended by the Board of Directors or the
Compensation Committee, subject to certain limitations (i) with respect to
certain matters for which stockholder approval may be required, and (ii)
provided by any applicable law, rule or regulation. No amendment, suspension or
termination of the Employee Plan, except as described in the Employee Plan, may
adversely affect the rights of an option holder under the Employee Plan without
the holder's consent.
In fiscal 1997 Mr. Buccieri and Ms. Ross each received options to
purchase 30,000 shares under the Employee Plan with an exercise price of $1.094,
subject to stockholder approval of the amendment to the Employee Plan. On 30
April, 1997 Mr.
16
<PAGE>
Chapdelaine received options to purchase 50,000 shares under the Employee Plan
with an exercise price of 1.168 (110% of market value on 30 April, 1997) in lieu
of cash compensation of $58,400 for fiscal 1998.
If the stockholders do not approve the amendment to the Employee Plan,
the options granted to Messrs. Chapdelaine, Buccieri, and Ms. Ross on 30 April
and 7 March respectively, will be rescinded. An aggregate of 243,000 options to
purchase shares of common stock have been granted,110,000 of which are subject
to shareholder approval of the proposed amendment to the Employee Plan.
The following table sets forth the amounts allocated to each of the
following under the Employee Plan.
NEW PLAN BENEFITS
1994 Employee Combination Stock Option Plan
-------------------------------------------
<TABLE>
<CAPTION>
Number of Shares
Name Dollar Value ($)(1) Subject to Options
---- ------------------- ------------------
<S> <C> <C>
George R. Chapdelaine - 50,000
President and Chief
Executive Officer (2)
Executive Officers as a group (2)(3) - 110,000
Current Nonemployee Not Eligible 0
Directors as a group
All Employees who are - 0
Not Executive Officers
as a group
</TABLE>
- ------
(1) Based upon the difference between the market value of the underlying shares
on the date of grant and the exercise price of the options. This valuation
does not take into account any appreciation in market value of the
underlying shares which may occur over the term of the options.
(2) Subject to stockholder approval of the proposed amendment to the Employee
Plan, on 30 April, 1997, the Company granted an option to purchase 50,000
shares to George R. Chapdelaine at an exercise price of $1.25 per share. If
the proposal to amend the Employee Plan is not approved by the
shareholders, all of these options will be rescinded.
(3) Subject to stockholder approval of the proposed amendment to the Employee
Plan on 7 March, 1997, the Company granted an
17
<PAGE>
option to purchase 30,000 shares to each of Mr. Buccieri and Ms. Ross at an
exercise price of $1.25 per share. If the proposal to amend the Employee
Plan is not approved by the stockholders, all these options will be
rescinded.
Options to purchase an aggregate of 243,000 shares of common Stock have
been granted to all current employees as a group. At July 25, 1997, the market
value of the Common Stock underlying the outstanding options under the Employees
Plan was $303,750, based upon the closing price per share of the Common Stock
$1.25 on the NASDAQ Small-Cap Market on that date.
Federal Tax Consequences of the Employee Plan
The following discussion of the federal income tax consequences of the
issuance and exercise of options granted under the Employee Plan and the 1994
Plan is based upon the provisions of the Code as in effect on the date of this
proxy statement, current regulations thereunder, and existing administrative
rulings of the Internal Revenue Service. It is not intended to be a complete
discussion of all of the federal income tax consequences of either plan or of
all of the requirements that must be met in order to qualify for the described
tax treatment.
Nonqualified Options
This section discusses the treatment of nonqualified options offered
under the 1994 Combination Stock Option Plan.
A recipient of a nonqualified option will not recognize any income for
federal tax purposes with respect to the option until the option is exercised.
At that time, subject to certain limited exceptions, the recipient will
recognize ordinary income in an amount equal to the excess of the fair market
value of the shares on the date acquired over the option exercise price.
When an option recipient recognizes income, the Company may be required
to withhold income taxes with respect to that income. If the Company satisfies
its withholding obligation, the Company will generally be entitled to a
compensation deduction for federal income tax purposes in an amount equal to the
taxable income recognized by the recipient.
Upon a subsequent sale of shares acquired by the exercise of a
nonqualified stock option, a recipient will recognize gain or loss equal to the
difference between the selling price of the shares and their fair market value
on the date of exercise. The gain or loss will be short-term or long-term
depending upon how long the shares were held.
18
<PAGE>
Incentive Stock Options
Incentive stock options granted under the 1994 Combination Stock Option
Plan are intended to qualify as incentive stock options under Section 422 of the
Code.
A participant will not recognize taxable income upon the grant or
exercise of an incentive stock option. If an option holder does not make a
"disqualifying disposition" (as defined below), then the option holder will not
recognize any taxable income until shares are sold or exchanged, and any gain
recognized upon distribution of shares will be taxable as long term capital
gain. A "disqualifying disposition" means any disposition of shares acquired on
the exercise of an incentive stock option within two years of the date the
option was granted or within one year of the date the shares were transferred to
the option holder.
If the option holder makes a disqualifying disposition, then the
difference between (a) the option exercise price and (b) the lesser of (i) the
fair market value of the shares on the date of exercise or (ii) the price
received upon disposition of the shares, will be taxable to the option holder as
ordinary income. In the case of a gift or certain other transfers, the amount of
taxable ordinary income is not limited to the gain that would have resulted from
a sale. Instead , it is equal to the excess of the fair market value of the
shares on the date of exercise over the option exercise price.
In the case of a disqualifying disposition, if the amount realized on
disposition of the shares exceeds the fair market value of the shares on the
date of exercise, the excess will be taxed as either long-term or short-term
capital gain depending on the option holder's holding period for the shares.
In general, the fair market value of the shares on the date of
exercise, less the exercise price, will be included in the option holder's
alternative minimum taxable income in the year the option is exercised. However,
if in the same year, the shares are disposed of at a lower price, then
alternative minimum taxable income is calculated using this lower price instead
of the shares' fair market value on the date of exercise.
The Company will not be entitled to any deduction with respect to the
grant or exercise of incentive stock options. In addition, no deduction will be
allowed to the Company upon the disposition of stock acquired upon the exercise
of an incentive stock option, unless the disposition is a disqualifying
disposition. In the case of a disqualifying disposition, the Company generally
will be entitled to a deduction equal to the amount of compensation income that
is recognized by the employee as a result of the disqualifying disposition.
19
<PAGE>
PROPOSAL 3
RATIFICATION OF APPOINTMENT OF INDEPENDENT PUBLIC ACCOUNTANTS
The Board of Directors recommends that the stockholders ratify the
selection of BDO Seidman, LLP as independent public accountants to examine the
consolidated financial statements of the Company and its subsidiaries for the
fiscal year ending April 26, 1998. BDO Seidman, LLP has audited the Company's
financial statements annually since 1994. BDO Seidman, LLP and its predecessor
have served PRI and, giving effect to the 1994 acquisition of PRI by the Company
(which for accounting purposes was treated as a reverse acquisition), the
Company continued in that capacity for more than 12 years. The Board of
Directors believes it is desirable and in the best interests of the Company to
continue employment of that firm. The affirmative vote of a majority of the
Company's Common Stock present in person or represented by proxy is required to
ratify the appointment of BDO Seidman, LLP as the Company's independent public
accountants. Action by stockholders is not required by law in the appointment of
independent public accountants, but their appointment is submitted by the Board
of Directors in order to give the stockholders a voice in the designation of
accountants. If the appointment is not ratified by the stockholders, the Board
of Directors will reconsider its choice of BDO Seidman, LLP as the Company's
independent public accounts.
A representative of BDO Seidman, LLP will be at the Meeting and will be
given an opportunity to make a statement, if so desired. The representative will
be available to respond to appropriate questions.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Stockholder Loans
In 1986, Anthony A. Polcari, the brother of John P. Polcari, Jr. and a
stockholder and employee of Pizzeria Regina, Inc. ("PRI") prior to the 1994
acquisition of PRI by the Company, sold real estate to PRI and provided
financing for a portion of the purchase price. In 1988, Anthony Polcari and his
wife, Mary Polcari, subscribed for preferred stock of PRI for an aggregate
subscription price of $695,500 to be paid on an installment basis. During the
year ended April 30, 1993, Mr. And Mrs. Polcari consented to the offset of the
outstanding balance of the
20
<PAGE>
purchase price for the real estate against the $610,863 remaining balance of the
subscription receivable, resulting in a net amount owing by the Company to Mr.
and Mrs. Polcari of approximately $147,000. The outstanding balance of this
obligation as of April 27, 1997 was $134,110. This amount is represented by two
notes bearing interest at 7.18% and 8% per annum payable in aggregate monthly
installments of principal and interest of $810 maturing January 2017.
Guarantee of Indebtedness of the Company; Stock Options
In addition to other security for the Company's loan arrangements with
Haymarket Co-Operative Bank, George R. Chapdelaine and John P. Polcari, Jr.
jointly and severally unconditionally guaranteed the payment of all principal,
interest and premium, if any, payable on such loans. In connection with these
guarantees, the Company has issued each of Messrs. Chapdelaine and Polcari
options to purchase 210,000 shares of Common Stock.
The Haymarket Credit Facility
In December 1995, the Company obtained a long-term credit facility with
Haymarket Co-Operative Bank. The terms of the credit facility provide that the
Company may initially draw upon a $500,000 credit line ("Phase One"), and that,
at the Bank's discretion, an additional $500,000 would be made available to the
Company based upon the Company's results of operations in fiscal 1996("Phase
Two"). During fiscal 1997 the company amended the 12% note and borrowed an
additional $380,750. The interest rate on Phase One of this credit facility is
2% above the bank's prime rate. The interest rate on Phase Two of the credit
facility is a fixed rate of 12% per annum. The Company is obligated to make
monthly principal payments of $8,333 on Phase One of the loan, commencing May
1996, with all outstanding amounts due and payable on or before April 1, 2001.
The Company is obligated to make monthly principal payments of $8,333 on Phase
Two of the loan, commencing August 1996. The credit facility is secured by all
of the assets of the Company and its subsidiaries, including the Company's
Pizzeria Regina restaurant located in the North End of Boston, Massachusetts.
The credit facility also contains certain covenants. The President and the
Treasurer of the Company and each of the Company's subsidiaries have guaranteed
the Company's obligations to the bank. A member of the Board of Directors of the
Company also serves as a member of the bank's board of directors. As of April
27, 1997, the Company had an outstanding balance of $825,000 under this credit
facility.
21
<PAGE>
Convertible Subordinated Debentures
During fiscal 1997, the Company issued $1,118,750 of convertible
subordinated debentures. Subordinated debentures outstanding at April 27, 1997
consist of convertible debentures bearing interest at 8% through 31 December,
1997; 10% through 31 December, 1998; 12% through 31 December 1999; 14% through
2011 (this is straight-lined at 13.2% annually) payable semi-annually and
convertible into the Company's common stock at a conversion rate of $1.25 per
share. The Company can redeem the convertible debentures under certain
conditions, as defined. The debentures are due December 2011. The Company is
authorized to issue an additional $381,250 of subordinated debentures. A member
of the board of directors of Boston Restaurant Associates, Inc. received $55,623
for services in connection with this transaction.
Guarantee of Stockholder Debt
George R. Chapdelaine is personally indebted to BayBank in the original
principal amount of $171,000, pursuant to a promissory note dated May 8, 1992,
as amended on April 29, 1994. As of year-end this loan was payed in full by Mr.
Chapdelaine. This note was guaranteed by the Company.
OTHER MATTERS
Voting Procedures
The votes of stockholders present in person or represented by proxy at
the Meeting will be tabulated by an inspector of elections appointed by the
Company. The seven (7) nominees for employees of the Company who receive the
greatest number of votes cast by stockholders present in person or represented
by proxy at the Meeting and entitled to vote thereon will be elected employees
of the Company. Abstentions, including broker non-votes, will have no effect on
the outcome of the vote for the election of employees. The affirmative vote of a
majority of the shares of common stock present or represented by proxy at the
Meeting is required for approval of each of Proposal No. 1 and 2. Abstentions
will have the effect of a vote against Proposal 2, but a broker non-vote will
have no effect.
Reporting Under Section 16(a) of the Securities Exchange Act of 1934
Section 16(a) of the Securities Exchange Act of 1934 requires the
Company's executive officers and employees, and persons who own more than 10% of
the Company's Common Stock, to
22
<PAGE>
file reports of ownership and changes in ownership on Forms 3, 4 and 5 with the
Securities and Exchange Commission and National Association of Securities
Dealers. Executive officers, directors and greater than 10% stockholders are
required to furnish the Company with copies of all Forms 3, 4, and 5 they file.
Based solely on the Company's review of the copies of such Forms, it
has received and written representations from certain reporting persons that
they were not required to file Forms 5 for specified fiscal years, the Company
believes that all of its executive officers, employees and greater than 10%
stockholders complied with all Section 16(a) filing requirements applicable to
them during the Company's fiscal year ended April 28, 1996.
Other Proposed Action
The Board of Directors know of no matters which may come before the
Meeting other than the election of Directors. However, if any other matters
should properly be presented to the Meeting, the persons named as proxies shall
have discretionary authority to vote the shares represented by the accompanying
proxy in accordance with their own judgment.
Stockholder Proposals
Proposals which stockholders intend to present at the Company's 1998
Annual Meeting of Stockholders and wish to have included in the Company's proxy
materials must be received by the Company no later than 9 April, 1998.
Annual Report on Form 10-KSB
Copies of the Company's Annual Report on Form 10-KSB for the fiscal
year ended April 27, 1997 as filed with the Securities and Exchange Commission
are available to stockholders without charge upon written request addressed to:
Investor Relations, Boston Restaurant Associates, Inc., at 999 Broadway, Suite
400, Saugus, Massachusetts 01906.
IT IS IMPORTANT THAT PROXIES BE RETURNED PROMPTLY. THEREFORE, STOCKHOLDERS
ARE URGED TO FILL IN, SIGN AND RETURN THE ACCOMPANYING FORM OF PROXY IN THE
ENCLOSED ENVELOPE.
23
<PAGE>
PROXY BOSTON RESTAURANT ASSOCIATES, INC. PROXY
ANNUAL MEETING OF STOCKHOLDERS
The undersigned hereby appoints George R. Chapdelaine and John P. Polcari,
Jr. and each of them, acting singly, with full power of substitution, attorneys
and proxies to represent the undersigned at the Annual Meeting of Stockholders
(the "Meeting") of Boston Restaurant Associates, Inc. (the "Company") to be held
on Friday, September 12, 1997, and at any adjournment or adjournments thereof,
with all power which the undersigned would possess if personally present, and to
vote all shares of stock which the undersigned may be entitled to vote at said
meeting upon the matters set forth in the Notice of and Proxy Statement for the
Meeting in accordance with the instructions on the reverse side and with
discretionary authority upon such other matters as may come before the Meeting.
All previous proxies are hereby revoked.
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS. IT WILL BE VOTED AS
DIRECTED BY THE UNDERSIGNED AND IF NO DIRECTION IS INDICATED, IT WILL BE VOTED
FOR THE PROPOSALS DESCRIBED IN THE NOTICE OF AND PROXY STATEMENT FOR THE
MEETINGS.
Continued, and to be signed, on reverse side
(Please fill in the reverse side and mail in enclosed envelope)
<PAGE>
Please date, sign and mail your
proxy card back as soon as possible!
Annual Meeting of Stockholders
BOSTON RESTAURANT ASSOCIATES, INC.
September 12, 1997
Please Detach and Mail in the Envelope Provided
A [X] Please mark your
votes as in this
example.
FOR (all nominees WITHHOLD
except as marked AUTHORITY
to contrary) to vote for all nominees
1. Election of [ ] [ ]
Directors:
(INSTRUCTION: To withhold authority to vote
for any individual nominee, write that nominee's
name in the space provided below.)
- -----------------------------------------------
Nominees: George R. Chapdelaine
Joseph J. Caruso
Roger Lipton
John P. Polcari, Jr.
Richard J. Reeves
Lucille S. Salhany
Terrance A. Smith
FOR AGAINST ABSTAIN
2. To adopt and approve the amendment to the 1994 [ ] [ ] [ ]
Employee Stock Option Plan as described in the
accompanying Proxy Statement.
3. To ratify the appointment of BDO Seidman LLP [ ] [ ] [ ]
auditors for fiscal year 1996.
Signature ____________ Date: ________ Signature ____________ Date: ________
NOTE: (Signatures should be the same as the name printed hereon. Executors,
administrators, trustees, guardians, attorneys, and officers of corporations
should add their titles when signing.)
<PAGE>
Exhibit C
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-QSB
[X] Quarterly report under Section 13 or 15(d) of the Securities Exchange Act
of 1934.
For the quarterly period ended July 27, 1997.
[ ] Transition report under Section 13 or 15(d) of the Securities Exchange Act
of 1934. For the transition period from _________ to __________.
Commission File Number
0-18369
-------
BOSTON RESTAURANT ASSOCIATES, INC.
----------------------------------
(Name of Small Business Issuer as Specified in its Charter)
Delaware 61-1162263
-------- ----------
(State or Other Jurisdiction of I.R.S. Employer
Incorporation or Organization) Identification No.)
999 Broadway
Saugus - Massachusetts
----------------------
(Address of Principal
Executive Offices)
(617)231-7575 01906
------------- -----
(Issuer's Telephone Number (Zip Code)
including area code)
Check whether the issuer: (1) filed all reports required to be filed by Section
13 or 15(d) of the Securities Exchange Act of 1934 during the past 12 months (or
such shorter period that the registrant was required to file such reports), and
(2) has been subject to such filing requirements for the past 90 days.
Yes [X] No [ ]
As of September 8, 1997, 5,015,693 shares of the issuer's Common Stock, par
value $.01 per share, were outstanding.
<PAGE>
BOSTON RESTAURANT ASSOCIATES, INC.
INDEX
PART I - FINANCIAL INFORMATION Page
----
Item 1. Financial Statements
Condensed Consolidated Balance Sheets as of July 27, 1997 and
April 27, 1997 ................................................ 3
Condensed Consolidated Statements of Operations for the thirteen
weeks ended July 27, 1997 and July 28, 1996 .................... 4
Condensed Consolidated Statements of Cash Flows for the thirteen
weeks ended July 27, 1997 and July 28, 1996 ................... 5
Notes to Condensed Consolidated Financial Statements ............ 6
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations ............................................ 7
PART II - OTHER INFORMATION ............................................ 11
SIGNATURES .............................................................. 12
2
<PAGE>
BOSTON RESTAURANT ASSOCIATES, INC. AND SUBSIDIARIES
PART 1 - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
CONDENSED CONSOLIDATED BALANCE SHEETS
(unaudited)
July 27 April 27
1997 1997
------- --------
ASSETS
Current:
Cash and cash equivalents $928,686 $726,054
Accounts receivable $40,398 $69,729
Inventories $212,894 $209,295
Prepaid expenses and other $121,971 $27,532
---------- ----------
Total current assets $1,303,949 $1,032,610
Net property and equipment $2,661,745 $2,656,328
Other assets $914,189 $944,180
---------- ----------
Total assets $4,879,883 $4,633,118
========== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $411,194 $382,294
Accrued liabilities $633,939 $628,277
Current maturities:
Notes payable-stockholder $4,319 $4,261
Long-term debt $200,000 $200,000
Obligations under capital leases $31,127 $30,850
---------- ----------
Total current liabilities $1,280,579 $1,245,682
Long-term obligations:
Notes payable-stockholder,
less current maturities $124,709 $125,810
Long-term debt, less
current maturities $574,998 $625,000
Obligations under capital leases,
less current maturities $131,286 $138,850
Subordinated debentures $1,312,500 $1,118,750
Deferred rent $68,551 $67,024
---------- ----------
Total liabilities $3,492,623 $3,321,116
Stockholders' equity
Common stock, $.01 par value,
25,000,000 shares authorized,
5,015,693 shares issued $50,157 $50,157
Additional paid in capital $9,052,624 $9,043,199
Accumulated deficit ($7,715,521) ($7,781,354)
---------- ----------
Total stockholders' equity $1,387,260 $1,312,002
Total liabilities and
stockholders' equity $4,879,883 $4,633,118
========== ==========
See accompanying notes.
-3-
<PAGE>
BOSTON RESTAURANTS ASSOCIATES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(unaudited)
Thirteen Weeks Ended
July 27 July 28
1997 1996
------- -------
Sales $2,845,885 $2,798,851
Cost of food and beverage $574,507 $659,325
Payroll $835,548 $857,802
Other operating expenses $910,350 $861,393
General and administrative $398,149 $324,413
----------- -----------
Income from operations $127,331 $95,918
Other(income) ($927) ($1,389)
Interest(income) ($9,099) $0
Interest expense $71,524 $21,046
----------- -----------
Net Income $65,833 $76,261
=========== ===========
Income per share $0.01 $0.02
===== =====
Weighted average number of
common shares outstanding 5,015,693 5,015,293
========= =========
See accompanying notes.
-4-
<PAGE>
BOSTON RESTAURANT ASSOCIATES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
Thirteen Weeks Ended
July 27 July 28
1997 1996
-------- --------
Cash flows provided by operating activities $144,979 $95,773
-------- --------
Cash flows from investing activities:
Capital expenditures ($77,804) $267,036)
-------- --------
Cash flows used for investing activities ($77,804) $267,036)
-------- --------
Cash flows from financing activities:
Repayments of long-term debt ($57,289) ($29,286)
Repayments of stockholder loans ($1,004) ($989)
Repayment of subordinated debentures $0 (43,333)
Proceeds from subordinated debentures $193,750 $0
Proceeds from long-term debt $0 $230,750
-------- --------
Cash flows provided by financing activities $135,457 $157,142
-------- --------
Increase (decrease) in cash and cash equivalents $202,632 ($14,121)
Cash and cash equivalents at beginning of period $726,054 $159,564
-------- --------
Cash and cash equivalents at end of period $928,686 $145,443
======== ========
See accompanying notes.
-5-
<PAGE>
BOSTON RESTAURANT ASSOCIATES, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
SUMMARY OF ACCOUNTING POLICIES
July 27, 1997
(unaudited)
NATURE OF BUSINESS AND BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial statements have been
prepared in accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-QSB. Accordingly,
they do not include all of the information and footnotes required by generally
accepted accounting principles for complete financial statements. In the opinion
of management, all adjustments (consisting of normal recurring accruals)
considered necessary for a fair presentation have been included. Operating
results for the thirteen-week period ended July 27, 1997 are not necessarily
indicative of the results that may be expected for the year ending April 26,
1998. For further information, refer to the consolidated financial statements
and footnotes thereto included in the Company's annual report on Form 10-KSB,
for the year ended April 27, 1997. The balance sheet at April 27, 1997 has been
derived from the audited financial statements at that date.
The accompanying statements of operations and cash flows for the fiscal 1998
period reflect the consolidated operations and cash flows of two casual dining
Italian restaurants and seven Pizzeria Regina restaurants for the entire period.
The accompanying statements of operations and cash flows for the fiscal 1997
period reflect the consolidated operations and cash flows of two casual dining
Italian restaurants for the entire period, and eight Pizzeria Regina restaurants
for the entire period.
NEW ACCOUNTING STANDARDS
In June 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 130, Reporting Comprehensive Income ("SFAS
130") and Statement of Financial Accounting Standards No. 131, Disclosures about
Segments of an Enterprise and Related Information ("SFAS 131").
SFAS 130 establishes standards for reporting and display of comprehensive
income, its components and accumulated balances. Comprehensive income is defined
to include all changes in equity except those resulting from investments by
owners and distributions to owners. Among other disclosures, SFAS 130 requires
that all items that are required to be recognized under current accounting
standards as components of comprehensive income be reported in a financial
statement that is displayed with the same prominence as other financial
statements.
6
<PAGE>
SFAS 131, which supersedes SFAS No. 14, Financial Reporting for Segments of a
Business Enterprise, establishes standards for the way that public companies
report information about operating segments in annual financial statements and
requires reporting of selected information about operating segments in interim
financial statements issued to the public. It also establishes standards for
disclosures regarding products and services, geographic areas and major
customers. SFAS 131 defines operating segments as components of a company about
which separate financial information is available that is evaluated regularly by
the chief operating decision maker in deciding how to allocate resources and in
assessing performance.
SFAS 130 and 131 are effective for financial statements for periods beginning
after December 15, 1997 and require comparative information for earlier years to
be restated. Because of the recent issuance of these standards, management has
been unable to fully evaluate the impact, if any, these standards may have on
future financial statement disclosures. Results of operations and financial
position, however, will be unaffected by implementation of these standards.
CONVERTIBLE SUBORDINATED DEBENTURES
For the quarter ending July 27, 1997, the Company issued $193,750 of convertible
subordinated debentures. In September 1997, the Company issued the remaining
$187,500 of convertible subordinate debentures, completing a placement of
$1,500,000. The debentures bear interest at 8% through December 31, 1997; 10%
through December 31, 1998; 12% through December 31, 1999; 14% through 2011
(straight-lined at 13.2% annually) payable semi-annually and convertible into
the Company's common stock at a conversion rate of $1.25 per share. The Company
can redeem the convertible debentures under certain conditions, as defined. The
debentures are due December 2011.
ITEM 2. Management's Discussion and Analysis or Plan of Operation
Results of Operations
Overview
In the thirteen weeks ending July 27, 1997, the Company recorded a profit of
$65,833 compared to $76,261 for the quarter ending July 28, 1996. The Company's
profit in the current fiscal quarter is substantially attributable to the income
generated by the Company's Pizzeria Regina restaurant business.
During its first quarter, the Company closed its Brookline Pizzeria Regina
location in May 1997 at the completion of its lease (due to the inability to
renegotiate a market value lease) and signed a lease for Pizzeria Regina Food
Court kiosk at the Paramus Park Mall, Paramus, New Jersey. The Company is
evaluating potential future sites for possible expansion of its Pizzeria Regina
operations.
7
<PAGE>
During August 1997, the Company opened a new Pizzeria Regina food court kiosk at
the Paramus Park Mall, Paramus, New Jersey.
Thirteen Weeks Ended July 27, 1997 as Compared to Thirteen Weeks ended July 28,
1996
Revenues. Net sales in the current period were $2,846,000 compared to net sales
in the prior year's period of $2,799,000. The increase in net sales in the
fiscal 1998 period as compared to the fiscal 1997 period reflected, among other
things, net sales at the new Solomon Pond Mall and the South Shore Plaza
Pizzeria Regina (which replaced an in-line restaurant at this mall), both of
these location were opened in August of 1996. The increases were partially
offset by the closure of the self-service in-line Pizzeria Regina at the South
Shore Plaza in August of 1996 (which was replaced by a Food Court kiosk at this
mall), and the closure of the Brookline Pizzeria Regina in May 1997 at the
completion of its lease (due to the inability to renegotiate a market value
lease). Net sales at the Company's Pizzeria Regina restaurants increased to
$1,933,000 in the current period from $1,861,000 in the prior year's period.
Net sales at the Company's full service casual dining restaurants, Polcari's
North End and Bel Canto's, decreased to $906,000 in the current period from
$928,000 in the prior year's period. This decrease is approximately $22,000.
Cost of Food and Beverages. Cost of food and beverages as a percentage of net
sales was 20% in the fiscal 1998 period as compared to 24% in the fiscal 1997
period.
The cost of food and beverages as a percentage of net sales at the Pizzeria
Regina restaurants was 16% and 19% in the fiscal 1998 and 1997 periods,
respectively. The cost of food and beverages as a percentage of net sales
decreased at the Pizzeria Regina restaurants, principally due to lower food
costs and the addition of Pizzeria Regina food court restaurants which generally
have lower food and beverage costs.
The cost of food and beverages as a percentage of net sales at the Company's
full service casual dining restaurants was 29% and 32% in the fiscal 1998 and
1997 periods respectively. The cost of food and beverages as a percentage of net
sales decreased at the Company's Polcari's North End restaurant due to a change
in menu mix and menu price increases.
Payroll Expenses. Payroll expenses were $836,000 (29% of net sales) in the
current period compared to payroll expenses in the prior year's period of
$858,000 (31% of net sales).
Payroll expenses at the Pizzeria Regina restaurants decreased to $514,000 (27%
of sales) in the current period from $525,000 (28% of net sales) in the prior
year's period. The decrease in payroll expenses at the Pizzeria Regina
restaurants was primarily attributable to the closure of the Company's Brookline
restaurant, which was partially offset by increase in payroll expenses
associated with the new Solomon Pond Mall food court location.
8
<PAGE>
Payroll expenses at the Company's full service casual dining restaurant
decreased to $295,000 (33% of net sales) in the current period from $303,000
(33% of net sales) in the prior year's period, reflecting a decrease in payroll
expenses at the only remaining Bel Canto restaurant. Payroll expenses at the
Company's Commissary was $26,000 for the fiscal 1998 period as compared to
$29,000 in the fiscal 1997 period.
Other Operating Expenses. Other operating expenses in the current period were
$910,000 (32% of net sales), compared to $861,000 (31% of net sales) in the
prior year's period. The increase in other operating expenses in the current
period was primarily attributable to the new Solomon Pond Mall location. The
Company's policy is to expense pre-opening cost as incurred. Therefore, the
Company realized pre-opening expenses associated with the Pizzeria Regina in
Paramus, NJ which opened on August 7, 1997, and costs associated in the
anticipation of future expansion. This increase in other operating expenses was
partially offset by the closure of the Brookline Pizzeria Regina restaurant.
Other operating expenses from the Pizzeria Regina restaurants increased to
$606,000 (31% of net sales) in the current period from $562,000 (30% of net
sales) in the prior year's period. This increase is primarily attributable to
the addition of the new Solomon Pond Mall and South Shore Plaza food court
restaurants and preopening expenses.
Other operating expenses at the Company's full service casual dining restaurants
increased to $289,000 (32% of net sales) in the current period from $277,000
(30% of net sales) in the prior year's period. This increase was primarily
attributable to increased costs associated with the Juke Box Lounge expansion at
the Polcari's North End restaurant. Other operating expenses also include
commissary expenses, which decreased to $15,000 in the current period, as
compared to $20,000 in the prior year's period.
General and Administrative Expenses. General and administrative expenses were
$398,000 (14% of net sales) in the current period, as compared to $324,000 (12 %
of net sales) in the prior year's period. The increase in general and
administrative expenses was due, principally, to an increase in support staff,
real estate site selection consulting expense, legal costs and depreciation
expenses.
Interest Expense. Interest expense increased to $72,000 in the current period as
compared to interest expense in the prior year's period of $21,000. This
increase in interest expense was associated with borrowings under the Company's
new credit facility and the issuance of convertible subordinated debentures.
Liquidity and Capital Resources.
At July 27, 1997, the Company had net working capital of approximately $23,000
and cash and cash equivalents of approximately $929,000.
9
<PAGE>
During the thirteen weeks ended July 27, 1997, the Company had a net increase in
cash and cash equivalents of $203,000 reflecting net cash provided by operating
activities of $145,000, net cash used for investing activities of $78,000 and
net cash provided by financing activities of $135,000. Net cash provided by
operating activities included the reduction of accounts receivable of $29,000
and the increase in accounts payable of $29,000, partially offset by an increase
of prepaid expenses of $94,000. Net cash used in investing activities reflects
partial costs associated with the opening of the new Paramus, NJ Pizzeria Regina
location. Net cash used in investing activities also reflects costs associated
with the production of ovens for future Pizzeria Regina expansion.
The Pizzeria Regina food court kiosk opened at the Paramus Park Mall, Paramus,
NJ on August 7, 1997. The Company entered into a lease for a food court kiosk in
Richmond, VA to open in the third quarter of fiscal 1998. The Company
anticipates that the cost of opening this restaurant will be approximately
$350,000. There can be no assurance that the Company will complete this on a
timely basis or within budget.
The Company is currently negotiating a lease to open a Polcari's North End
restaurant in the latter part of 1999. There can be no assurance that the
Company will enter into this lease , and if entered into that the Company's cash
flow will be sufficient to allow the Company to build-out Polcari's North End
restaurant or that the Company will be able to obtain additional financing upon
favorable terms, if at all.
For the quarter ending July 27, 1997, the Company issued $193,750 of convertible
subordinated debentures. In September 1997, the Company issued the remaining
$187,500 of convertible subordinate debentures, completing a placement of
$1,500,000. These debentures bear interest at 8% through December 31, 1997; 10%
through December 31, 1998; 12% through December 31, 1999; 14% through 2011
(straight-lined at 13.2% annually) payable semi-annually and convertible into
the Company's common stock at a conversion rate of $1.25 per share. The Company
can redeem the convertible debentures under certain conditions, as defined. The
debentures are due December 2011.
At July 27, 1997, the Company had current liabilities of $1,281,000, including
$411,000 of accounts payable, $634,000 of accrued liabilities and current
maturities of long term obligations in the amount of $235,000. At July 27, 1997,
the Company had long-term obligations, less current maturities, in the amount of
$2,212,000, including $575,000 due under its credit facility with Haymarket
Co-Operative Bank, $125,000 of loans payable to stockholder, $131,000 due under
the capital lease obligations, $1,312,500 of convertible subordinated
debentures, and $69,000 of deferred rent. The President and the Treasurer of the
Company and each of the Company's subsidiaries have guaranteed the Company's
obligations to the bank. As of September 6, 1996, the Company had borrowed the
full amount available under its bank credit facility.
The Company believes that its existing resources, cash flow from operations and
borrowings under its credit facility will be sufficient to allow it to meet its
obligations over the next twelve
10
<PAGE>
months. The Company intends to fund its current obligations and operating
expenses through cash generated from operations. The Company is also seeking
additional financing in order to finance its expansion plans and other cash flow
requirements. There can be no assurance that cash flows will improve in an
amount sufficient to allow the Company to fund its current obligations and
operating expenses, or that the Company will be able to obtain such additional
financing upon favorable terms, if at all. Failure of the Company to do so could
result in the Company's failure to be able to meet its cash flow requirements.
NEW ACCOUNTING STANDARDS
In June 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 130, Reporting Comprehensive Income ("SFAS
130") and Statement of Financial Accounting Standards No. 131, Disclosures about
Segments of an Enterprise and Related Information ("SFAS 131").
SFAS 130 establishes standards for reporting and display of comprehensive
income, its components and accumulated balances. Comprehensive income is defined
to include all changes in equity except those resulting from investments by
owners and distributions to owners. Among other disclosures, SFAS 130 requires
that all items that are required to be recognized under current accounting
standards as components of comprehensive income be reported in a financial
statement that is displayed with the same prominence as other financial
statements.
SFAS 131, which supersedes SFAS No. 14, Financial Reporting for Segments of a
Business Enterprise, establishes standards for the way that public companies
report information about operating segments in annual financial statements and
requires reporting of selected information about operating segments in interim
financial statements issued to the public. It also establishes standards for
disclosures regarding products and services, geographic areas and major
customers. SFAS 131 defines operating segments as components of a company about
which separate financial information is available that is evaluated regularly by
the chief operating decision maker in deciding how to allocate resources and in
assessing performance.
SFAS 130 and 131 are effective for financial statements for periods beginning
after December 15, 1997 and require comparative information for earlier years to
be restated. Because of the recent issuance of these standards, management has
been unable to fully evaluate the impact, if any, these standards may have on
future financial statement disclosures. Results of operations and financial
position, however, will be unaffected by implementation of these standards.
11
<PAGE>
"Safe Harbor" Statement Under the Private Securities Litigation Reform Act of
1995
Forward-looking statements in this report, including without, limitation,
statements relating to the adequacy of the Company's resources, and the timing
of the Company's expansion are made pursuant to the safe harbor provisions of
the Private Securities Litigation Reform Act of 1995. Investors are cautioned
that such forward-looking statements involve risks and uncertainties, including
without limitation: potential quarterly fluctuations in the Company's operating
results; seasonality of sales; competition; risks associated with expansion; the
Company's reliance on key employees; risks generally associated with the
restaurant industry; risks associated with geographic concentration of the
Company's restaurants; risks associated with serving alcoholic beverages; and
other risks and uncertainties indicated from time to time in the Company's
filings with the Securities and Exchange Commission.
12
<PAGE>
PART II
ITEM 1. Legal Proceedings.
No material litigation.
ITEM 2. Changes in Securities.
None.
ITEM 3. Defaults Upon Senior Securities.
None.
ITEM 4. Submission of Matters to a Vote of Security Holders.
None.
ITEM 5. Other Information.
None
ITEM 6. Exhibits and Reports On Form 8-K.
(a) Exhibits.
(ww) The lease between Pizzeria Regina of Virginia in Regency Square
Mall in Richmond, VA.
(b) Reports On Form 8-K.
None.
13
<PAGE>
SIGNATURES
----------
In accordance with the requirements of the Securities Exchange Act of 1934, the
registrant caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
BOSTON RESTAURANT ASSOCIATES, INC.
Date: September 8, 1997 By: /s/ George R. Chapdelaine
-------------------------------------
George R. Chapdelaine, President and
Chief Executive Officer
Quarter
14
<PAGE>
Exhibit D
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-QSB
[X] Quarterly report under Section 13 or 15(d) of the Securities Exchange Act of
1934.
For the quarterly period ended October 26, 1997.
[ ] Transition report under Section 13 or 15(d) of the Securities Exchange Act
of 1934. For the transition period from _________ to __________.
Commission File Number
0-18369
-------
BOSTON RESTAURANT ASSOCIATES, INC.
(Name of Small Business Issuer as Specified in its Charter)
Delaware 61-1162263
(State or Other I.R.S. Employer
Jurisdiction of Identification
Incorporation or No.)
Organization)
999 Broadway
Saugus - Massachusetts
----------------------
(Address of Principal
Executive Offices)
(617)231-7575 01906
(Issuer's Telephone Number (Zip Code)
including area code)
Check whether the issuer: (1) filed all reports required to be filed by Section
13 or 15(d) of the Securities Exchange Act of 1934 during the past 12 months (or
such shorter period that the registrant was required to file such reports), and
(2) has been subject to such filing requirements for the past 90 days.
Yes X No__
As of December 8, 1997, 5,015,693 shares of the issuer's Common Stock, par value
$.01 per share, were outstanding.
<PAGE>
BOSTON RESTAURANT ASSOCIATES, INC.
INDEX
PART I - FINANCIAL INFORMATION Page
Item 1. Financial Statements
Condensed Consolidated Balance Sheets as of October 26, 1997 and
April 27, 1997 ................................................... 3
Condensed Consolidated Statements of Operations for the
thirteen weeks and twenty-six weeks ended October 26, 1997 and
October 27, 1996....................................................4
Condensed Consolidated Statements of Cash Flows for the twenty-six
weeks ended October 26, 1997 and October 27, 1996 ................ 5
Notes to Condensed Consolidated Financial Statements ...............6
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations .............................................7
PART II - OTHER INFORMATION ..............................................15
SIGNATURES ...........................................................17
2
<PAGE>
BOSTON RESTAURANT ASSOCIATES, INC. AND SUBSIDIARIES
PART 1 - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
CONDENSED CONSOLIDATED BALANCE SHEETS
(unaudited)
<TABLE>
<CAPTION>
Oct 26 April 27
1997 1997
---------- ----------
<S> <C> <C>
ASSETS
Current:
Cash and cash equivalents $631,581 $726,054
Accounts receivable $132,707 $69,729
Inventories $214,996 $209,295
Prepaid expenses and other $39,559 $ 27,532
----------- ----------
Total current assets $1,018,843 $1,032,610
Net property and equipment $2,595,290 $2,656,328
Other assets $1,286,833 $944,180
----------- ----------
Total assets $4,900,966 $4,633,118
=========== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $401,934 $382,294
Accrued liabilities $634,264 $628,277
Current maturities:
Notes payable-stockholder $4,394 $4,261
Long-term debt $200,000 $200,000
Obligations under capital leases $33,237 $30,850
----------- ----------
Total current liabilities $1,273,829 $1,245,682
Long-term obligations:
Notes payable-stockholder, less
current maturities $123,576 $125,810
Long-term debt, less current maturities $524,998 $625,000
Obligations under capital leases,
less current maturities $121,612 $138,850
Subordinated debentures $1,337,500 $1,118,750
Deferred rent $70,081 $67,024
----------- ----------
Total liabilities $3,451,596 $3,321,116
Stockholders' equity
Common stock, $.01 par value, 25,000,000
shares authorized, 5,015,693 shares issued $50,157 $50,157
Additional paid in capital $9,062,058 $9,043,199
Accumulated deficit ($7,662,845) ($7,781,354)
----------- ----------
Total stockholders' equity $1,449,370 $1,312,002
Total liabilities and stockholders' equity $4,900,966 $4,633,118
=========== ==========
</TABLE>
3
<PAGE>
BOSTON RESTAURANTS ASSOCIATES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(unaudited)
<TABLE>
<CAPTION>
Thirteen Weeks Ended Twenty-six Weeks Ended
Oct 26 Oct 27 Oct 26 Oct 27
1997 1996 1997 1996
------------------ ------------------ ------------------ -----------------
<S> <C> <C> <C> <C>
Sales $2,989,820 $3,013,279 $5,835,705 $5,812,130
Cost of food and beverage $602,586 $691,653 $1,177,093 $1,350,978
Payroll $887,985 $929,774 $1,723,533 $1,787,576
Other operating expenses $1,029,288 $1,048,854 $1,939,639 $1,910,248
General and administrative $347,277 $263,624 $745,426 $588,038
------------------ ------------------ ------------------ -----------------
Income from operations $122,684 $79,374 $250,014 $175,290
Other (income) ($1,594) ($912) ($2,521) ($2,304)
Interest (income) ($5,902) $0 ($15,001) $0
Interest expense $77,503 $33,752 $149,027 $54,798
------------------ ------------------ ------------------ -----------------
Net Income $52,677 $46,534 $118,509 $122,796
================== ================== ================== =================
Income per share $0.01 $0.01 $0.02 $0.02
================== ================== ================== =================
Weighted average number of
common shares outstanding 5,015,693 5,015,293 5,015,693 5,015,293
================== ================== ================== =================
</TABLE>
4
<PAGE>
BOSTON RESTAURANT ASSOCIATES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
Twenty-six Weeks Ended
Oct 26 Oct 27
1997 1996
---- ----
<S> <C> <C>
Cash flows provided by operating activities $309,014 $260,265
--------------- ---------------
Cash flows from investing activities:
Capital expenditures ($505,282) ($675,738)
--------------- ---------------
Cash flows used for investing activities ($505,282) ($675,738)
--------------- ---------------
Cash flows from financing activities:
Repayments of long-term debt ($100,002) ($87,601)
Repayments of capital lease obligations ($14,851) $0
Repayments of stockholder loans ($2,102) ($1,991)
Repayment of subordinated debentures $0 (68,666)
Proceeds from subordinated debentures $218,750 $0
Proceeds from long-term debt $0 $571,945
--------------- ---------------
Cash flows provided by financing activities $101,795 $413,687
--------------- ---------------
Increase (decrease) in cash and cash equivalents ($94,473) ($1,786)
Cash and cash equivalents at beginning of period $726,054 $159,564
--------------- ---------------
Cash and cash equivalents at end of period $631,581 $157,778
=============== ===============
</TABLE>
5
<PAGE>
BOSTON RESTAURANT ASSOCIATES, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
SUMMARY OF ACCOUNTING POLICIES
October 26, 1997
(unaudited)
NATURE OF BUSINESS AND BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial statements have been
prepared in accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-QSB. Accordingly,
they do not include all of the information and footnotes required by generally
accepted accounting principles for complete financial statements. In the opinion
of management, all adjustments (consisting of normal recurring accruals)
considered necessary for a fair presentation have been included. Operating
results for the thirteen-week period and twenty-six week period ended October
26, 1997 are not necessarily indicative of the results that may be expected for
the year ending April 26, 1998. For further information, refer to the
consolidated financial statements and footnotes thereto included in the
Company's annual report on Form 10-KSB, for the year ended April 27, 1997. The
balance sheet at April 27, 1997 has been derived from the audited financial
statements at that date.
The accompanying statements of operations and cash flows for the fiscal 1998
period reflect the consolidated operations and cash flows of two casual dining
Italian restaurants and six Pizzeria Regina restaurants for the entire period,
and four Pizzeria Regina restaurants for a portion of the period. The
accompanying statements of operations and cash flows for the fiscal 1997 period
reflect the consolidated operations and cash flows of two casual dining Italian
restaurants and seven Pizzeria Regina restaurants for the entire period, and
three Pizzeria Regina restaurants for a portion of the period.
NEW ACCOUNTING STANDARDS
In June 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 130, Reporting Comprehensive Income ("SFAS
130") and Statement of Financial Accounting Standards No. 131, Disclosures about
Segments of an Enterprise and Related Information ("SFAS 131").
SFAS 130 establishes standards for reporting and display of comprehensive
income, its components and accumulated balances. Comprehensive income is defined
to include all changes in equity except those resulting from investments by
owners and distributions to owners. Among other disclosures, SFAS 130 requires
that all items that are required to
6
<PAGE>
be recognized under current accounting standards as components of comprehensive
income be reported in a financial statement that is displayed with the same
prominence as other financial statements.
SFAS 131, which supersedes SFAS No. 14, Financial Reporting for Segments of a
Business Enterprise, establishes standards for the way that public companies
report information about operating segments in annual financial statements and
requires reporting of selected information about operating segments in interim
financial statements issued to the public. It also establishes standards for
disclosures regarding products and services, geographic areas and major
customers. SFAS 131 defines operating segments as components of a company about
which separate financial information is available that is evaluated regularly by
the chief operating decision maker in deciding how to allocate resources and in
assessing performance.
SFAS 130 and 131 are effective for financial statements for periods beginning
after December 15, 1997 and require comparative information for earlier years to
be restated. Because of the recent issuance of these standards, management has
been unable to fully evaluate the impact, if any, these standards may have on
future financial statement disclosures. Results of operations and financial
position, however, will be unaffected by implementation of these standards.
Convertible Subordinated Debentures
- -----------------------------------
For the quarter ending October 26, 1997, the Company issued $25,000 of
convertible subordinated debentures. In 1997, the Company completed the
subscriptions of the remaining $162,500 of convertible subordinated debentures,
completing a placement of $1,500,000. These debentures bear interest at 8%
through December 31, 1997; 10% through December 31, 1998; 12% through December
31, 1999; 14% through 2011 (straight-lined at 13.2% annually) payable
semi-annually and convertible into the Company's common stock at a conversion
rate of $1.25 per share. The Company can redeem the convertible debentures under
certain conditions, as defined. The debentures are due December 2011. The
remaining proceeds from the debentures will be used to fund future expansion.
ITEM 2. Management's Discussion and Analysis or Plan of Operation
---------------------------------------------------------
Results of Operations
- ---------------------
Overview
- --------
In the thirteen weeks ending October 26, 1997, the Company recorded a profit of
$52,677 compared to $46,534 for the quarter ending October 27, 1996. The
Company's profit in the current fiscal quarter is substantially attributable to
the income generated by the Company's Pizzeria Regina restaurant business.
7
<PAGE>
During its second quarter, the Company closed its Brookline, (Pizzeria Regina at
Longwood), location in October 1997 at the completion of its lease. In addition
the Company had operated a self service sit down Regina Pizzeria in the
Burlington Mall, Burlington, MA which was closed in October 1997 at the
conclusion of the lease. A Pizzeria Regina food court kiosk continues in
operation at this mall.
During August 1997, the Company opened a new Pizzeria Regina food court kiosk at
the Paramus Park Mall, Paramus, New Jersey. In October the Company signed a
lease for a Pizzeria Regina food court kiosk at the Regency Square Mall in
Richmond, VA. The Company continues to evaluate potential future sites for
possible expansion of its Pizzeria Regina operations.
Thirteen Weeks Ended October 26, 1997 as Compared to Thirteen Weeks ended
October 27, 1996
- -------------------------------------------------------------------------
Revenues. Net sales in the current period were $2,990,000 compared to net sales
in the prior year's period of $3,013,000. The decrease in net sales in the
fiscal 1998 period as compared to the fiscal 1997 period were due to the closure
of the self-service in-line Pizzeria Regina the Burlington Mall in October of
1997, and the closure of the two Brookline Pizzeria Regina restaurants in May
and October of 1997 at the completion of their leases (due to the inability to
renegotiate a market value lease). The decreases were partially offset by the
opening of the new Paramus N.J. Pizzeria Regina food court in August of 1997.
Net sales at the Company's Pizzeria Regina restaurants decreased to $2,067,000
in the current period from $2,104,000 in the prior year's period.
Net sales at the Company's full service casual dining restaurants, Polcari's
North End and Bel Canto's, increased to $918,000 in the current period from
$898,000 in the prior year's period. This increase in net sales is primarily
attributable to the Polcari's North End restaurant.
Cost of Food and Beverages. Cost of food and beverages as a percentage of net
sales was 20% in the fiscal 1998 period as compared to 23% in the fiscal 1997
period.
The cost of food and beverages as a percentage of net sales at the Pizzeria
Regina restaurants was 16% and 20% in the fiscal 1998 and 1997 periods,
respectively. The cost of food and beverages as a percentage of net sales
decreased at the Pizzeria Regina restaurants, principally due to lower food
costs and the addition of Pizzeria Regina food court restaurants which generally
have lower food and beverage costs.
The cost of food and beverages as a percentage of net sales at the Company's
full service casual dining restaurants was 29% and 31% in the fiscal 1998 and
1997 periods respectively. The cost of food and beverages as a percentage of net
sales decreased at the Company's Polcari's North End restaurant due to a change
in menu mix and menu price increases.
8
<PAGE>
Payroll Expenses. Payroll expenses were $888,000 (30 % of net sales) in the
current period compared to payroll expenses in the prior year's period of
$930,000 (31% of net sales).
Payroll expenses at the Pizzeria Regina restaurants decreased to $557,000 (27%
of sales) in the current period from $607,000 (29% of net sales) in the prior
year's period. The decrease in payroll expenses at the Pizzeria Regina
restaurants was primarily attributable to the closure of the Company's two
Brookline Pizzeria Regina restaurants and the self-service in-line Pizzeria
Regina at the Burlington Mall, which was partially offset by increase in payroll
expenses associated with the new Paramus Park Mall food court location.
Payroll expenses at the Company's full service casual dining restaurant remained
the same at $291,000 (32% of net sales) in the current period and $291,000 (32%
of net sales) in the prior year's period. Payroll expenses at the Company's
Commissary was $40,000 for the fiscal 1998 period as compared to $32,000 in the
fiscal 1997 period. The increase is primarily due to the purchasing director's
salary associated with the Commissary.
Other Operating Expenses. Other operating expenses in the current period were
$1,029,000 (34% of net sales), compared to $1,049,000 (35% of net sales) in the
prior year's period. The decrease in other operating expenses in the current
period was primarily attributable to the closure of the two Brookline Pizzeria
Regina restaurants and the self-service in-line Pizzeria Regina at the
Burlington Mall. The decrease in other operating expenses was partially offset
by the new Paramus Park Mall location and the Company's policy to expense
pre-opening costs as incurred. Therefore, the Company realized pre-opening
expenses associated with the Pizzeria Regina in Richmond, VA which opened on
November 30, 1997, and costs associated in the anticipation of future expansion.
These costs include legal and real-estate site location fees.
Other operating expenses from the Pizzeria Regina restaurants decreased to
$705,000 (34% of net sales) in the current period from $715,000 (34% of net
sales) in the prior year's period.
Other operating expenses at the Company's full service casual dining restaurants
decreased to $294,000 (32% of net sales) in the current period from $315,000
(35% of net sales) in the prior year's period. Other operating expenses also
include commissary expenses, which decreased to $17,000 in the current period,
as compared to $18,000 in the prior year's period. In addition, other operating
expenses included pre-opening expenses of $13,000 associated with the opening of
new locations.
General and Administrative Expenses. General and administrative expenses were
$347,000 (12% of net sales) in the current period, as compared to $264,000 (9 %
of net sales) in the prior year's period. The increase in general and
administrative expenses was due, principally, to an increase in legal costs,
real estate site selection consulting expense, and support staff.
9
<PAGE>
Interest Expense. Interest expense increased to $78,000 in the current period as
compared to interest expense in the prior year's period of $34,000. This
increase in interest expense was associated with borrowings under the Company's
new credit facility and the issuance of convertible subordinated debentures.
Twenty-six Weeks Ended October 26, 1997 as Compared to Twenty-six Weeks ended
October 27, 1996
- -----------------------------------------------------------------------------
Revenues. Net sales in the current period were $5,836,000 compared to net sales
in the prior year's period of $5,812,000. The increase in net sales in the
fiscal 1998 period as compared to fiscal 1997 period reflected, among other
things, net sales at the Solomon Pond Mall and the South Shore Plaza Pizzeria
Regina (which replaced an in-line restaurant at this mall), both of these
locations were opened in August of 1996. The increases were also attributable to
opening of the new Paramus, NJ Pizzeria Regina Food Court in August of 1997. The
increase in net sales were partially offset by the closure of the self-service
in-line Pizzeria Regina at the Burlington Mall in October of 1997 and the
closure of the two Brookline Pizzeria Regina restaurants in May and October of
1997 at the completion of their leases (due to the inability to renegotiate a
market value lease at the Brookline locations). Net sales at the Company's
Pizzeria Regina restaurants increased to $4,000,000 in the current period from
$3,965,000 in the prior's year's period.
Net sales at the Company's full service casual dining restaurants, Polcari's
North End and Bel Canto's decreased to $1,825,000 in the current period from
$1,826,000 in the prior year's period. This decrease in net sales in primarily
attributable to the Bel Canto restaurant.
Cost of Food and Beverages. Cost of food and beverages as a percentage of net
sales was 20% in the fiscal 1998 period as compared to 23% in the fiscal 1997
period.
The cost of food and beverages as a percentage of net sales at the Pizzeria
Regina restaurants was 16% and 20% in the fiscal 1998 and 1997 periods,
respectively. The cost of food and beverages as a percentage of net sales
decreased at the Pizzeria Regina restaurants, principally due to lower food
costs and the addition of Pizzeria Regina food court restaurants which generally
have lower food beverage costs.
The cost of food and beverages as a percentage of net sales at the Company's
full service casual dining restaurants was 29% and 31% in the fiscal 1998 and
1997 periods respectively. The cost of food and beverages as a percentage of net
sales decreased at the Company's Polcari's North End restaurant due to a change
in menu mix and menu price increases.
Payroll Expenses. Payroll expenses were $1,724,000 (30% of net sales) in the
current period compared to payroll expenses in the prior year's period of
$1,788,000 (31% of net sales).
10
<PAGE>
Payroll expenses at the Pizzeria Regina restaurants decreased to $1,071,000 (27%
of sales) in the current period from $1,132,000 (29% of net sales) in the prior
year's period. The decrease in payroll expenses at the Pizzeria Regina
restaurants was primarily attributable to the closure of the Company's two
Brookline Pizzeria Regina restaurants and the self-service in-line Pizzeria
Regina at the Burlington Mall, which was partially offset by an increase in
payroll expenses associated with the new Paramus Park Mall food court location
in August of 1997 and the Solomon Pond Mall location in August of 1996.
Payroll expenses at the Company's full service casual dining restaurant
decreased to $586,000 (32% of net sales) in the current period from $594,000
(33% of net sales) in the prior year's period. Payroll expenses at the Company's
Commissary was $66,000 for the fiscal 1998 period as compared to $61,000 in the
fiscal 1997 period. The increase is primarily due to the purchasing director's
salary associated with the Commissary.
Other Operating Expenses. Other operating expenses in the current period were
$1,940,000 (33% of net sales), compared to $1,910,000 (33% of net sales) in the
prior year's period. The increase in other operating expenses in the current
period was primarily attributable to the New Paramus Park Mall location . The
Company's policy is to expense pre-opening costs as incurred. Therefore, the
Company realized pre-opening expenses associated with the Pizzeria Regina in
Paramus NJ, which opened on August 7, 1997, the Pizzeria Regina in Richmond,VA
which opened on November 30, 1997, and costs associated in the anticipation of
future expansion. These costs include legal and real-estate site locations. The
increase in other operating expenses was partially offset by the closure of the
two Brookline Pizzeria Regina restaurants and the self-service in-line Pizzeria
Regina at the Burlington Mall.
Other operating expenses from the Pizzeria restaurants increased to $1,307,000
(33% of net sales) in the current period from $1,277,000 (32% of net sales) in
the prior year's period.
Other operating expenses at the Company's full service casual dining restaurants
decreased to $583,000 (32% of net sales) in the current period from $592,000
(32% of net sales) in the prior year's period. Other operating expenses also
include commissary expenses, which decreased to $32,000 in the current period,
as compared to $41,000 in the prior year's period. In addition the Company
realized pre-opening expenses of $18,000.
General and Administrative Expenses. General and administrative expenses were
$745,000 (13% of net sales) in the current period, as compared to $588,000 (10%
of net sales) in the prior year's period. The increase in general and
administrative expenses was due, principally, to an increase in legal costs,
support staff, real estate site selection consulting expenses, and depreciation
expenses.
Interest Expense. Interest Expense increased to $149,000 in the current period
as compared to interest expense in the prior year's period of $55,000. This
increase in interest expense was associated with borrowings under the Company's
new credit facility and the issuance of convertible subordinated debentures.
11
<PAGE>
Liquidity and Capital Resources.
- --------------------------------
At October 26, 1997, the Company had a negative net working capital of
approximately $255,000 and cash and cash equivalents of approximately $632,000.
During the twenty-six weeks ended October 26, 1997, the Company had a net
decrease in cash and cash equivalents of $94,000, reflecting net cash provided
by operating activities of $309,000, net cash used for investing activities of
$505,000 and net cash provided by financing activities of $102,000. Net cash
provided by operating activities included the increase in accounts payable of
$20,000, partially offset by an increase of prepaid expenses of $12,000 and an
increase in accounts receivable of $63,000. Net cash used in investing
activities reflects the costs associated with the opening of the new Paramus, NJ
Pizzeria location and partial cost associated with the opening of the new
Pizzeria Regina Food Court kiosk at the Regency Square mall in Richmond, VA .
Net cash used in investing activities also reflects costs associated with the
production of ovens for future Pizzeria Regina expansion. Net cash provided by
financing activities include proceeds for the convertible subordinated
debentures placement.
The Company opened Pizzeria Regina food court kiosks at the Paramus Park Mall,
Paramus, NJ on August 7, 1997 and at the Regency Square Mall, Richmond, VA on
November 30, 1997. The Company has entered into a lease for a food court kiosk
in the Oviedo Mall, Oviedo, FL which is planning to open in the Spring of 1998.
For the quarter ending October 26, 1997, the Company issued $25,000 of
convertible subordinated debentures. In 1997, the Company completed the
subscriptions of the remaining $162,500 of convertible subordinated debentures,
completing a placement of $1,500,000. These debentures bear interest at 8%
through December 31, 1997; 10% through December 31, 1998; 12% through December
31, 1999; 14% through 2011 (straight-lined at 13.2% annually) payable
semi-annually and convertible into the Company's common stock at a conversion
rate of $1.25 per share. The Company can redeem the convertible debentures under
certain conditions, as defined. The debentures are due December 2011. The
remaining proceeds from the debentures will be used to fund future expansion.
At October 26, 1997, the Company had current liabilities of $1,274,000,
including $402,000 of accounts payable, $634,000 of accrued liabilities and
current maturities of long term obligations in the amount of $238,000. At
October 26, 1997, the Company had long-term obligations, less current
maturities, in the amount of $2,178,000, including $525,000 due under its credit
facility with Haymarket Co-Operative Bank, $124,000 of loans payable to
stockholder, $122,000 due under the capital lease obligations,
12
<PAGE>
$1,337,500 of convertible subordinated debentures, and $70,000 of deferred rent.
The President and the Treasurer of the Company and each of the Company's
subsidiaries have guaranteed the Company's obligations to the bank. As of
December 8, 1997, the Company had borrowed the full amount available under its
bank credit facility.
The Company believes that its existing resources, cash flow from operations and
borrowings under its credit facility will be sufficient to allow it to meet its
obligations over the next twelve months. The Company intends to fund its current
obligations and operating expenses through cash generated from operations. The
Company is also seeking additional financing in order to finance its expansion
plans and other cash flow requirements. There can be no assurance that cash
flows will improve in an amount sufficient to allow the Company to fund its
current obligations and operating expenses, or that the Company will be able to
obtain such additional financing upon favorable terms, if at all. Failure of the
Company to do so could result in the Company's failure to be able to meet its
cash flow requirements.
NEW ACCOUNTING STANDARDS
In June 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 130, Reporting Comprehensive Income ("SFAS
130") and Statement of Financial Accounting Standards No. 131, Disclosures about
Segments of an Enterprise and Related Information ("SFAS 131").
SFAS 130 establishes standards for reporting and display of comprehensive
income, its components and accumulated balances. Comprehensive income is defined
to include all changes in equity except those resulting from investments by
owners and distributions to owners. Among other disclosures, SFAS 130 requires
that all items that are required to be recognized under current accounting
standards as components of comprehensive income be reported in a financial
statement that is displayed with the same prominence as other financial
statements.
SFAS 131, which supersedes SFAS No. 14, Financial Reporting for Segments of a
Business Enterprise, establishes standards for the way that public companies
report information about operating segments in annual financial statements and
requires reporting of selected information about operating segments in interim
financial statements issued to the public. It also establishes standards for
disclosures regarding products and services, geographic areas and major
customers. SFAS 131 defines operating segments as components of a company about
which separate financial information is available that is evaluated regularly by
the chief operating decision maker in deciding how to allocate resources and in
assessing performance.
SFAS 130 and 131 are effective for financial statements for periods beginning
after December 15, 1997 and require comparative information for earlier years to
be restated. Because of the recent issuance of these standards, management has
been unable to fully evaluate the impact, if any, these standards may have on
future financial statement disclosures. Results of operations and financial
position, however, will be unaffected by implementation of these standards.
13
<PAGE>
"Safe Harbor" Statement Under the Private Securities Litigation Reform Act of
1995
Forward-looking statements in this report, including without, limitation,
statements relating to the adequacy of the Company's resources, and the timing
of the Company's expansion are made pursuant to the safe harbor provisions of
the Private Securities Litigation Reform Act of 1995. Investors are cautioned
that such forward-looking statements involve risks and uncertainties, including
without limitation: potential quarterly fluctuations in the Company's operating
results; seasonality of sales; competition; risks associated with expansion; the
Company's reliance on key employees; risks generally associated with the
restaurant industry; risks associated with geographic concentration of the
Company's restaurants; risks associated with serving alcoholic beverages; and
other risks and uncertainties indicated from time to time in the Company's
filings with the Securities and Exchange Commission.
14
<PAGE>
PART II
ITEM 1. Legal Proceedings.
------------------
No pending legal proceedings that are not routine litigation, or incidental to
the business.
ITEM 2. Changes in Securities and Use of Proceeds.
------------------------------------------
For use of proceeds, see liquidity, part I.
ITEM 3. Defaults Upon Senior Securities.
--------------------------------
None.
ITEM 4. Submission of Matters to a Vote of Security Holders.
----------------------------------------------------
The Security holder of Boston Restaurant Associates, Inc. convened for their
annual meeting on September 12, 1997. At this meeting 7 directors were elected,
the Company's auditors were reappointed and the stockholders voted to amend the
1994 Employee Stock Option Plan; thereby, increasing the number of reserved
share by 365,000 shares.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------
DIRECTOR VOTES FOR VOTES AGAINST VOTES ABSTAINED UNVOTED
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
George R. Chapdelaine 4,613,092.000 26,325.000
- --------------------------------------------------------------------------------------------------------------------------
Joseph J. Caruso 4,619,247.000 20,170.000
- --------------------------------------------------------------------------------------------------------------------------
Roger Lipton 4,618,247.000 21,170.000
- --------------------------------------------------------------------------------------------------------------------------
John J. Polcari, Jr. 4,619,247.000 20,170.000
- --------------------------------------------------------------------------------------------------------------------------
Richard J. Reeves 4,614,247.000 25,170.000
- --------------------------------------------------------------------------------------------------------------------------
Lucille Shalhany 4,619,247.000 20,170.000
- --------------------------------------------------------------------------------------------------------------------------
Terrance A. Smith 4,614,247.000 25,170.000
- --------------------------------------------------------------------------------------------------------------------------
Proposition 2 2,927,257.000 89,455.000 24,076.000 1,598,629.000
To adopt and approve
the amendment to the
1994 Employee Stock
Option Plan
- --------------------------------------------------------------------------------------------------------------------------
15
<PAGE>
- --------------------------------------------------------------------------------------------------------------------------
DIRECTOR VOTES FOR VOTES AGAINST VOTES ABSTAINED UNVOTED
- --------------------------------------------------------------------------------------------------------------------------
Proposition 3 4,628,542.000 7,715.000
To ratify the
appointment of
BDO Seidman
LLP auditors
for fiscal year
1998.
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
ITEM 5. Other Information.
------------------
It is the intention of Boston Restaurant Associates International, Inc. to offer
for sale, Franchise opportunities within the State of Georgia under the name
Pizzeria Regina (TM). Therefore Boston Restaurant Associates International, Inc.
availed itself of the self effectuating exceptions from registration under the
Georgia Business Opportunities Sales Law Title 10, Chapter 1, Article 15 on 12
November 1997.
ITEM 6. Exhibits and Reports On Form 8-K.
---------------------------------
(a) Exhibits.
---------
10.14 The lease between Pizzeria Regina of Virginia and Regency Square Mall in
Richmond, Virginia
10.15 The lease between Pizzeria Regina of Florida and the Oviedo Mall,
Oviedo, FL.
Reports On Form 8-K.
--------------------
(b) None.
16
<PAGE>
SIGNATURES
----------
In accordance with the requirements of the Securities Exchange Act of 1934, the
registrant caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
BOSTON RESTAURANT ASSOCIATES, INC.
By: /s/ George R. Chapdelaine
Date: December 8, 1997
------------------------------------
George R. Chapdelaine, President and
Chief Executive Officer
17
<PAGE>
================================================================================
No person is authorized in connection with Any offering made hereby to give any
information Shares Or to make any representation not contained in this
Prospectus, and, if given or made, such information Or representation must not
be relied upon as having Been authorized by the Company or any Underwriters.
This Prospectus does not constitute an offer To sell or solicitation of an offer
to buy any Security other than shares offered hereby, nor does It constitute an
offer to buy any of the securities offered hereby to any person in any
jurisdiction in which it is unlawful to make such an offer or solicitation.
Neither the delivery of this Prospectus not any sale made hereunder shall under
any circumstances create any implication that the Information contained herein
is correct as of any date hereof.
TABLE OF CONTENTS
AVAILABLE INFORMATION 2
DOCUMENTS INCORPORATED BY REFERENCE 2
"SAFE HARBOR" STATEMENT UNDER PRIVATE SECURITIES
LITIGATION REFORM ACT OF 1995 3
PROSPECTUS SUMMARY 4
RISK FACTORS 7
USE OF PROCEEDS 10
DILUTION 10
THE OFFERING 11
PRICE RANGE OF COMMON STOCK 11
DIVIDEND POLICY 17
RECENT DEVELOPMENTS 17
BUSINESS 18
LEGAL MATTERS 23
EXPERTS 23
CONDENSED CONSOLIDATED FINANCIAL INFORMATION F-1 - F-3
EXHIBIT A - Form 10-KSB for Fiscal Year Ended April 27, 1997
EXHIBIT B - Proxy Statement filed August 11, 1997
EXHIBIT C - Form 10-QSB for Quarter Ended July 27, 1997
EXHIBIT D - Form 10-QSB for Quarter Ended October 27, 1997
2,006,277
BOSTON RESTAURANT
ASSOCIATES, INC.
PROSPECTUS
February __, 1998
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the estimated expenses in connection with
the offering (all amounts are estimates except SEC registration fee and NASD
filing fee):
Total Expenses
--------------
SEC Registration Fee......................... $591.85
NASD Filing Fee.............................. $2,006.28
Blue Sky Fees and Expenses................... $25,000.00
Transfer Agent and Registrar Fees ........... $25,000.00
Accounting Fees and Expenses................. $30,000.00
Legal Fees and Expenses...................... $70,000.00
Printing and Engraving ...................... $15,000.00
Miscellaneous................................ $32,401.87
TOTAL.................................. $200,000.00
===========
Item 15. Indemnification of Directors and Officers
Reference is made to Article VII of the Registrant's Certificate of
Incorporation and Article IV of Registrant's Bylaws.
Section 145 of the General Corporation Law of the State of Delaware
authorizes a corporation to indemnify directors, officers, employees or agents
of the corporation in non-derivative suits if such party acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best interest
of the corporation and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful, as determined in
accordance with the Delaware General Corporation Law. Section 145 further
provides that indemnification shall be provided if the party in question is
successful on the merits or otherwise in the defense of any claim.
The Registrant is also party to an Indemnification Agreement with certain
of its present directors and officers, and may enter into such agreements with
any officer, employee, agent or fiduciary designated by the Board of Directors.
Each Indemnification Agreement provides that the Registrant will indemnify the
indemnitee against expenses, including reasonable attorneys' fees, judgments,
penalties, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with any civil or criminal action or administrative
proceeding arising out of the performance of his duties. Such indemnification is
available if the indemnitee acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Registrant and
with respect to any criminal action, had no reasonable cause to believe that his
conduct was unlawful. The Indemnification Agreement also requires that the
Registrant indemnify the party thereto in all cases to the fullest extent
permitted by applicable law.
Each Indemnification Agreement requires the Registrant to advance
litigation expenses at the request of the party seeking indemnification, whether
prior to or after final resolution of a proceeding, provided that he undertakes
to repay such advances if it is ultimately determined that he is not entitled to
indemnification for his expenses. The advance of litigation expenses will
thereby be mandatory upon satisfaction of certain conditions by the indemnitee.
II-1
<PAGE>
Each Indemnification Agreement permits the officer, director or the person
that is party thereto to bring suit to seek recovery of amounts due under the
Indemnification Agreement and to recover the expenses of such action if he is
successful.
Insofar as indemnification for liabilities arising under the 1933 Act may
be permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions or otherwise, the Registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the 1933 Act and, is therefore, unenforceable.
Item 16(a). Exhibits
(a) Exhibits
<TABLE>
<CAPTION>
Exhibit
Number Description Reference
------ ----------- ---------
<S> <C> <C>
2 Stock for Stock Purchase Agreement, as amended, among Capucino's, Inc.,
a Delaware corporation, and John P. Polcari, Jr. and George R.
Chapdelaine, in their capacity as Voting Trustees under that certain
Amended and Restated Voting Trust Agreement dated April 28, 1994 A-2*
4(a) Description of Common Stock (contained in the Amended Certificate of
Incorporation of the Registrant) A-4(a)*
(b) Form of Certificate evidencing shares of Common Stock F-4(b)*
(c) Form of Subscription Certificate for Rights Previously filed
(d) Form of Rights Agent Agreement between the Company and American Stock
Transfer & Trust Company Previously filed
(e) Notice of Guaranteed Delivery and subscription instructions Previously filed
5 Legal Opinion of Brown, Rudnick, Freed & Gesmer Filed herewith
9 Amended and Restated Voting Trust Agreement dated April 28, 1994, as
amended. A-9*
10(a) Employment Agreement between the Registrant and George R. Chapdelaine A-10(p)* **
(b) Form of 1994 Nonemployee Director Stock Option Plan A-10(q)* **
(c) Form of 1994 Combination Stock Option Plan A-10(r) * **
(d) Stock Purchase Warrant issued to Corning Partners IV, L.P. on April 29,
1994 A-10(z)*
(e) $500,000 Subordinated Debenture of the Registrant issued to Corning
Partners IV, L.P. on April 29, 1994 A-10(aa)*
II-2
<PAGE>
(f) Form of Indemnification Agreement with each of the directors and
certain officers of the Registrant A-10(bb)* **
(g) Incentive Stock Option Plan B-10(h)* **
(h) Non-Employee Director's Stock Option Plan C-10(h)* **
(i) Form of Stock Option Agreement between the Registrant and each of James
I. Maruna, W. Rex Seley and Richard J. Reeves D-10(h)
(j) Severance Agreement between the Registrant and James I. Maruna E-10(p)* **
(k) Amendment to Employment Agreement between the Registrant and George R.
Chapdelaine A-(hh)* **
(l) $500,000 Note, dated December 28, 1995, issued by Boston Restaurant
Associates, Inc. in favor of Haymarket Co-Operative Bank F-10.01*
(m) Condominium Mortgage-Security Agreement, dated December 28, 1995,
issued by George R. Chapdelaine, Trustee of BRA Nominee Trust, in favor
of Haymarket Co-Operative Bank F-10.02*
(n) Loan and Security Agreement, dated December 28, 1995, between Boston
Restaurant Associates, Inc. and Haymarket Co-Operative Bank F-10.03*
(o) Guaranty of Ocean, Inc., Polcari Enterprises, Inc., Pizzeria Regina,
Inc., Capucino Boston IV, Inc., Fantail Restaurant, Inc., Capucino's,
Inc., Bel Canto Restaurant, Inc., and Capucino's of Saugus, Inc., dated
December 28, 1995, in favor of Haymarket Co-Operative Bank F-10.04*
(p) Guaranty of George R. Chapdelaine, individually and as trustee of the
BRA Nominee Trust, dated December 28, 1995, in favor of Haymarket
Co-Operative Bank F-10.05*
(q) Guaranty of John P. Polcari, Jr., dated December 28, 1995, in favor of
Haymarket Co-Operative Bank F-10.06*
(r) Form of Option granted to Mr. Chapdelaine and Mr. Polcari in
consideration of their guaranties of BRA's the obligations of Boston
Restaurant Associates, Inc. under its credit facility F-10.07*
(s) $350,000 Note, dated April 19, 1996, issued by Boston Restaurant
Associates, Inc. in favor of Haymarket Co-Operative Bank H-10(rr)*
(t) $500,000 Note, dated July 26, 1996, issued by Boston Restaurant
Associates, Inc. in favor of Haymarket Co-Operative Bank H-10(ss)*
(u) Lease dated August 1, 1993 between Polcari Enterprises, Inc. and the
E.J.H. Realty Trust regarding the Registrant's warehouse located in
Somerville, Massachusetts A-(10)n*
(v) Lease dated October 14, 1986 between Polcari Enterprises, Inc. and
Costa Fruit & Produce Co., Inc. regarding the Registrant's commissary
located in Charlestown, Massachusetts A-10(o)*
II-3
<PAGE>
(w) Equipment Lease dated July 26, 1996 between HCB Corporation and Ocean,
Inc. regarding certain equipment H-10(tt)*
(x) International Development Agreement dated as of January 1, 1998 between
Boston Restaurant Associates, Inc. and Regina International, Ltd. Filed herewith
(y) Form of Variable Rate Convertible Subordinated Debenture G-4.01*
11 Calculation of net loss per share of common stock
13 Annual report on Form 10-KSB, Quarterly Reports on Form 10-QSB for
periods ended July 27, 1997 and October 26, 1997 and Proxy Statement Included as exhibits
filed August 4, 1997 to Prospectus
23(a) Consent of BDO Seidman, LLP Filed herewith
23(b) Consent of Brown, Rudnick, Freed & Gesmer (included in Exhibit 5) Filed herewith
24 Power of Attorney (included in signature page) Filed herewith
</TABLE>
- ----------------
* Pursuant to Rule 411 under the Securities Act of 1933, as amended, this
document is hereby incorporated by reference to a document previously filed with
the Securities and Exchange Commission. The letter refers to the prior filing
identified below and the number refers to the exhibit number in that prior
filing:
A -- Registration Statement on Form SB-2 (File No. 33-81068).
B -- Registration Statement on Form S-1 (File No. 33-31748).
C -- Annual report on Form 10-K for the year ended April 30, 1991.
D -- Transition report on Form 10-K for the seven months ended April 30, 1990.
E -- Annual report on Form 10-K for the year ended April 30, 1993.
F -- Quarterly report on Form 10-QSB for the period ended January 28, 1996.
G -- Current Report on Form 8-K dated February 11, 1997.
H -- Annual report on Form 10-KSB for the year ended April 30, 1997.
** Management Contract or Compensatory Plan or Arrangement.
Item 16(b). The financial statement schedules have been omitted because they are
not required or because the information contained therein is included in the
Notes to the Consolidated Financial Statements.
Item 17. Undertakings
(a) Intentionally omitted.
(b) Intentionally omitted.
(c) Intentionally omitted.
(d) Intentionally omitted.
(e) Intentionally omitted.
II-4
<PAGE>
(f) Intentionally omitted.
(g) Intentionally omitted.
(h) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the Registrant's By-Laws, the Underwriting Agreement
relating to this offering, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(i) The undersigned Registrant hereby further undertakes that:
(1) For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon
Rule 430A and contained in a form of prospectus filed by the
Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form
of prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(j) Intentionally omitted.
II-5
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Pre-Effective Amendment No. 1 to Registration Statement
333-43999 on Form S-2 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Saugus, Commonwealth of Massachusetts, on this
25th day of February, 1998.
BOSTON RESTAURANT ASSOCIATES, INC.
By: /s/ George R. Chapdelaine
-----------------------------------
George R. Chapdelaine, President
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints George R. Chapdelaine, John P. Polcari, or Fran
V. Ross, and each of them (with full power to each of them to act alone), his or
her true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any or all amendments (including
post-effective amendments) to Registration Statement No. 333-43999 and to file
the same, with all exhibits thereto and other documents in connection therewith,
and in connection with any registration of additional securities pursuant to
Rule 462(b) under the Securities Act of 1933, to sign any abbreviated
registration statement and any and all amendments thereto, and to file the same,
with all exhibits thereto and other documents in connection therewith, in each
case, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them or their substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Pre-Effective Amendment No. 1 to Registration Statement No. 333-43999 has been
signed by the following persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ George R. Chapdelaine
- -------------------------- Chief Executive Officer,
George R. Chapdelaine President and Director February 25, 1998
/s/ Fran V. Ross
- -------------------------- Chief Financial Officer February 25, 1998
Fran V. Ross
<PAGE>
/s/Robert Fabrizio
- -------------------------- Principal Accounting Officer February 25, 1998
Robert Fabrizio
/s/Joseph J. Caruso
- -------------------------- Director February 23, 1998
Joseph J. Caruso
/s/Roger Lipton
- -------------------------- Director February 23, 1998
Roger Lipton
/s/John P. Polcari, Jr.
- -------------------------- Director February 25, 1998
John P. Polcari, Jr.
/s/ Richard J. Reeves
- -------------------------- Director February 23, 1998
Richard J. Reeves
/s/ Terrance A. Smith
- -------------------------- Director February 25, 1998
Terrance A. Smith
/s/Lucille Salhany
- -------------------------- Director February 25, 1998
Lucille Salhany
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description Reference Page
- ----------- ----------- --------- ----
<S> <C> <C> <C>
Stock for Stock Purchase Agreement, as amended, among
Capucino's, Inc., a Delaware corporation, and John P.
Polcari, Jr. and George R. Chapdelaine, in their
capacity as Voting Trustees under that certain Amended
2 and Restated Voting Trust Agreement dated April 28, 1994 A-2*
Description of Common Stock (contained in the Amended
4(a) Certificate of Incorporation of the Registrant) A-4(a)*
(b) Form of Certificate evidencing shares of Common Stock F-4(b)*
(c) Form of Subscription Certificate for Rights Previously filed
(d) Form of Rights Agent Agreement between the Company and
American Stock Transfer & Trust Company Previously filed
(e) Notice of Guaranteed Delivery and subscription
instructions Previously filed
5 Legal Opinion of Brown, Rudnick, Freed & Gesmer Filed herewith
9 Amended and Restated Voting Trust Agreement dated
April 28, 1994, as amended. A-9*
10(a) Employment Agreement between the Registrant and George
R. Chapdelaine A-10(p)* **
(b) Form of 1994 Nonemployee Director Stock Option Plan A-10(q)* **
(c) Form of 1994 Combination Stock Option Plan A-10(r) * **
(d) Stock Purchase Warrant issued to Corning Partners IV,
L.P. on April 29, 1994 A-10(z)*
(e) $500,000 Subordinated Debenture of the Registrant
issued to Corning Partners IV, L.P. on April 29, 1994 A-10(aa)*
<PAGE>
(f) Form of Indemnification Agreement with each of the
directors and certain officers of the Registrant A-10(bb)* **
(g) Incentive Stock Option Plan B-10(h)* **
(h) Non-Employee Director's Stock Option Plan C-10(h)* **
(i) Form of Stock Option Agreement between the Registrant
and each of James I. Maruna, W. Rex Seley and Richard
J. Reeves D-10(h)
(j) Severance Agreement between the Registrant and James I.
Maruna E-10(p)* **
(k) Amendment to Employment Agreement between the
Registrant and George R. Chapdelaine A-(hh)* **
(l) $500,000 Note, dated December 28, 1995, issued by
Boston Restaurant Associates, Inc. in favor of
Haymarket Co-Operative Bank F-10.01*
(m) Condominium Mortgage-Security Agreement, dated December
28, 1995, issued by George R. Chapdelaine, Trustee of
BRA Nominee Trust, in favor of Haymarket Co-Operative
Bank F-10.02*
(n) Loan and Security Agreement, dated December 28, 1995,
between Boston Restaurant Associates, Inc. and
Haymarket Co-Operative Bank F-10.03*
(o) Guaranty of Ocean, Inc., Polcari Enterprises, Inc.,
Pizzeria Regina, Inc., Capucino Boston IV, Inc.,
Fantail Restaurant, Inc., Capucino's, Inc., Bel Canto
Restaurant, Inc., and Capucino's of Saugus, Inc., dated
December 28, 1995, in favor of Haymarket Co-Operative
Bank F-10.04*
(p) Guaranty of George R. Chapdelaine, individually and as
trustee of the BRA Nominee Trust, dated December 28,
1995, in favor of Haymarket Co-Operative Bank F-10.05*
(q) Guaranty of John P. Polcari, Jr., dated December 28,
1995, in favor of Haymarket Co-Operative Bank F-10.06*
(r) Form of Option granted to Mr. Chapdelaine and Mr.
Polcari in consideration of their guaranties of BRA's
the obligations of Boston Restaurant Associates, Inc.
under its credit facility F-10.07*
(s) $350,000 Note, dated April 19, 1996, issued by Boston
Restaurant Associates, Inc. in favor of Haymarket
Co-Operative Bank H-10(rr)*
<PAGE>
(t) $500,000 Note, dated July 26, 1996, issued by Boston
Restaurant Associates, Inc. in favor of Haymarket
Co-Operative Bank H-10(ss)*
(u) Lease dated August 1, 1993 between Polcari Enterprises,
Inc. and the E.J.H. Realty Trust regarding the
Registrant's warehouse located in Somerville,
Massachusetts A-(10)n*
(v) Lease dated October 14, 1986 between Polcari
Enterprises, Inc. and Costa Fruit & Produce Co., Inc.
regarding the Registrant's commissary located in
Charlestown, Massachusetts A-10(o)*
(w) Equipment Lease dated July 26, 1996 between HCB
Corporation and Ocean, Inc. regarding certain equipment H-10(tt)*
(x) International Development Agreement dated as of
January 1, 1998 between Boston Restaurant Associates,
Inc. and Regina International, Ltd. Filed herewith
(y) Form of Variable Rate Convertible Subordinated
Debenture G-4.01*
11 Calculation of net loss per share of common stock
13 Annual report on Form 10-KSB, Quarterly Reports on Form Included as
10-QSB for periods ended July 27, 1997 and October 26, exhibits to
1997 and Proxy Statement filed August 4, 1997 Prospectus
23(a) Consent of BDO Seidman, LLP Filed herewith
23(b) Consent of Brown, Rudnick, Freed & Gesmer (included in
Exhibit 5) Filed herewith
24 Power of Attorney (included in signature page) Filed herewith
</TABLE>
----------------
* Pursuant to Rule 411 under the Securities Act of 1933, as amended,
this document is hereby incorporated by reference to a document previously filed
with the Securities and Exchange Commission. The letter refers to the prior
filing identified below and the number refers to the exhibit number in that
prior filing:
<PAGE>
A -- Registration Statement on Form SB-2 (File No. 33-81068).
B -- Registration Statement on Form S-1 (File No. 33-31748).
C -- Annual report on Form 10-K for the year ended April 30, 1991.
D -- Transition report on Form 10-K for the seven months ended April 30, 1990.
E -- Annual report on Form 10-K for the year ended April 30, 1993.
F -- Quarterly report on Form 10-QSB for the period ended January 28, 1996.
G -- Current report on Form 8-K dated February 11, 1997.
H -- Annual report on Form 10-KSB for the year ended April 30, 1997.
** Management Contract or Compensatory Plan or Arrangement.
[LETTERHEAD OF BROWN RUDNICK FREED & GESMER]
Exhibit 5
February 25, 1997
Boston Restaurant Associates, Inc.
999 Broadway, Suite 400
Saugus, MA 01906
RE: Form S-2 Registration Statement
-------------------------------
Ladies and Gentlemen:
We have acted as counsel to Boston Restaurant Associates, Inc., a Delaware
corporation (the "Company"), in connection with an offering of Rights, each
Right entitling the holder thereof to purchase one share of common stock, $.01
par value, of the Company (the "Rights") to existing stockholders and of
unsubscribed shares to certain employees (the "Transaction") and in connection
with the preparation and filing with the Securities and Exchange Commission of a
Registration Statement on Form S-2 (the "Registration Statement") pursuant to
which the Company is registering under the Securities Act of 1933, as amended
(the "Act"), a total of 2,006,277 Rights and an equal number of shares of Common
Stock to be issued upon exercise of the Rights or upon subscription by employees
(the "Shares"). This opinion letter, including the schedules hereto (the
"Opinion Letter"), is being rendered pursuant to the requirements of the Act.
This firm, in rendering legal opinions, customarily makes certain
assumptions which are described in Schedule A hereto. In the course of our
representation of the Company in connection with this Transaction, nothing has
come to our attention which causes us to believe reliance upon any of those
assumptions is inappropriate, and, with your concurrence, the opinions hereafter
expressed are based upon those assumptions. For purposes of those assumptions,
the Enumerated Party referred to in Schedule A is the Company
In connection with this Opinion Letter, we have examined the documents
listed on Schedule B attached hereto (collectively, the "Documents"). With your
concurrence, the opinions hereafter expressed, whether or not qualified by
language such as "to our knowledge", are based solely upon (1) our review of the
Documents, (2) such review of published sources of law as we have deemed
necessary, and (3) discussions with those of our attorneys who have given
substantive legal representation to the Company in connection with the
Transaction.
Our opinion hereafter expressed is limited to the General Corporation Law
of the State of Delaware.
<PAGE>
Boston Restaurant Associates, Inc.
February 25, 1998
Page 2
Based upon and subject to the foregoing, we are of the opinion that the
Rights and the Shares to be sold by the Company under the circumstances
contemplated in the Registration Statement are duly authorized and, when
delivered in accordance with the terms of the Prospectus included in the
Registration Statement at the time it becomes effective, the Rights Certificate,
and the Rights Agreement, will be validly issued, fully paid and nonassessable.
We understand that this opinion is to be used in connection with the
Registration Statement. We consent to the filing of this opinion as an Exhibit
to said Registration Statement and to the reference to our firm wherever it
appears in the Registration Statement, including the prospectuses constituting a
part thereof and any amendments thereto. This opinion may be used in connection
with the offering of the Rights and Shares only while the Registration
Statement, as it may be amended from time to time, remains in effect.
Very truly yours,
BROWN, RUDNICK, FREED & GESMER
By: BROWN, RUDNICK, FREED & GESMER, P.C.
By: /s/ David H. Murphree
-------------------------------------
David H. Murphree, A Member
Duly Authorized
DHM/ GRP/
<PAGE>
Boston Restaurant Associates, Inc.
February 25, 1998
Page 3
SCHEDULE A
BROWN, RUDNICK, FREED & GESMER
STANDARD ASSUMPTIONS
------------------------------
In rendering legal opinions, Brown, Rudnick, Freed & Gesmer makes certain
customary assumptions described below:
1. Each natural person executing any of the Documents has sufficient
legal capacity to enter into such Documents and perform the
Transaction.
2. Each person other than the Enumerated Party has all requisite power
and authority and has taken all necessary corporate or other action to
enter into those Documents to which it is a party or by which it is
bound, to the extent necessary to make the Documents enforceable
against it.
3. Each person other than the Enumerated Party has complied with all
legal requirements pertaining to its status as such status relates to
its rights to enforce the Transaction Documents against the Enumerated
Party.
4. Each Document is accurate, complete and authentic, each original is
authentic, each copy conforms to an authentic original and all
signatures are genuine.
5. All official public records are accurate, complete and properly
indexed and filed.
<PAGE>
Boston Restaurant Associates, Inc.
February 25, 1998
Page 4
SCHEDULE B
LIST OF DOCUMENTS
-----------------
In connection with the Opinion Letter to which this Schedule B is attached,
we have reviewed the following Documents. However, except as otherwise expressly
indicated, we have not reviewed any other documents, instruments or agreements
referred to in or listed upon any of the following Documents.
(i) the Certificate of Incorporation of the Company, as amended, as
certified by the Secretary of State of the State of Delaware, and a certificate
of the Secretary of the Company that there have been no further amendments
thereto;
(ii) a copy of the By-laws of the Company, as amended, certified by the
Secretary of the Company as presently being in effect;
(iii) the corporate minute books or other records of the Company pertaining
to the proceedings of the stockholders and directors of the Company;
(iv) a specimen certificate of the Company for the Common Stock;
(v) a specimen Subscription Certificate for the Rights;
(vi) the form of Rights Agent Agreement between the Company and American
Stock Transfer & Trust Company; and
(vii) Registration Statement No. 333-43999 on Form S-2, as amended by
Pre-Effective Amendment No. 1 thereto, and the form of the Prospectus included
therein.
Exhibit 10(x)
PIZZERIA REGINA
INTERNATIONAL DEVELOPMENT AGREEMENT
DATED: January __, 1998
<PAGE>
TABLE OF CONTENTS
1. DEVELOPMENT RIGHTS AND OBLIGATIONS......................................1
2. TERM....................................................................4
3. RIGHT TO BUY-OUT........................................................5
4. MONTHLY DEVELOPMENT FEE.................................................7
5. ROYALTY.................................................................7
6. SITE SELECTION.........................................................10
7. TRAINING OF SYSTEM RESTAURANT EMPLOYEES................................11
8. PROMOTIONAL MATERIALS; OPERATIONS MANUALS..............................11
9. QUALITY ASSURANCE......................................................12
10. START-UP OF SYSTEM RESTAURANTS........................................12
11. COMPLIANCE WITH LAWS..................................................12
12. ENFORCEMENT OF FRANCHISE AGREEMENTS...................................13
13. ADVERTISING AND MARKETING.............................................13
14. CONFIDENTIAL INFORMATION..............................................14
15. CORPORATE REQUIREMENTS; FINANCIAL STATEMENTS..........................14
16. TRANSFER OF INTEREST..................................................14
17. DEFAULT AND TERMINATION...............................................16
18. COVENANTS.............................................................17
19. NOTICES...............................................................19
20. INDEPENDENT CONTRACTOR AND INDEMNIFICATION............................20
21. APPROVALS AND WAIVERS.................................................21
22. SEVERABILITY AND CONSTRUCTION.........................................21
23. APPLICABLE LAW; REMEDIES..............................................22
24. ARBITRATION OF DISPUTES...............................................23
- -------------------------------------------------------------------------------
DEVELOPMENT AGREEMENT Page i
<PAGE>
25. ENTIRE AGREEMENT......................................................23
26. ACKNOWLEDGMENTS.......................................................23
EXHIBIT A - PROPRIETARY MARKS---------------------------------------25
EXHIBIT B - DEVELOPMENT AREA----------------------------------------26
EXHIBIT C - FRANCHISE AGREEMENT-------------------------------------27
EXHIBIT D - UNIFORM FRANCHISING OFFERING CIRCULAR-------------------28
- -------------------------------------------------------------------------------
DEVELOPMENT AGREEMENT Page ii
<PAGE>
PIZZERIA REGINA
---------------
INTERNATIONAL DEVELOPMENT AGREEMENT
-----------------------------------
THIS INTERNATIONAL DEVELOPMENT AGREEMENT ("Agreement") is entered into on
January, 1998, between Boston Restaurant Associates, Inc., a Delaware
corporation ("Franchisor"), and Regina International Ltd., a Gibraltar
corporation ("Developer").
WHEREAS, Franchisor and its affiliates have developed a system relating to
the preparation and promotion of high-quality pizza and related products and
services and the establishment and operation of restaurants specializing in the
sale of high-quality pizza and other food and beverage items (the "System");
WHEREAS, the distinguishing characteristics of the System include, without
limitation, the sale of brick-oven pizza prepared in accordance with special
recipes and seasonings; distinctive exterior and interior restaurant design,
decor, color scheme and furnishings; standards, specifications and procedures
for operations; procedures for quality control; training and assistance
programs; and advertising and promotional programs; all of which may be changed,
improved, and further developed by Franchisor and its affiliates from time to
time;
WHEREAS, the System is identified by means of certain trade names, service
marks, trademarks, logos, emblems, and indicia of origin, including but not
limited to the mark "Pizzeria Regina(R)", as set forth in Exhibit A to this
Agreement, and such other trade names, service marks, and trademarks as may
hereafter be designated by Franchisor in writing for use in the System (the
"Proprietary Marks");
WHEREAS, Franchisor, through its wholly owned subsidiary, Boston Restaurant
Associates International, Inc., a Delaware corporation ("BRAII"), desires to
introduce the System into new geographic territories through the sale of
franchises for development of restaurants under the System and the Proprietary
Marks;
WHEREAS, Developer wishes to obtain the right to develop restaurants under
the System and the Proprietary Marks ("System Restaurants") by acting as
Franchisor's and BRAII's exclusive representative to market and promote the
System and sell and implement franchises for System Restaurants within the
territory defined in Exhibit B to this Agreement ("Franchises");
NOW, THEREFORE, the parties agree as follows:
1. DEVELOPMENT RIGHTS AND OBLIGATIONS
----------------------------------
1.1. Franchisor hereby grants Developer (provided that Developer or its
Permitted Transferee (as defined in Section 16.2) shall at all times be at least
ten percent (10%) owned by Terrance Smith and Terrance Smith shall at all times
be the largest stockholder of Developer or its Permitted Transferee and shall at
all times serve as the Chief Executive Officer involved in
<PAGE>
the day-to-day operations of Developer or its Permitted Transferee) the
exclusive right, and Developer undertakes the obligation, pursuant to the terms
and conditions of this Agreement, to act as Franchisor's and BRAII's
representative to market and promote the System and sell and implement
franchises for System Restaurants solely within the territory defined in Exhibit
B to this Agreement (the "Development Area"). The System Restaurants shall be
located only at the specific locations approved in writing by Franchisor in
accordance with Section 6 below pursuant to Franchise Agreements (as defined in
Section 1.3 below) between Franchisees and BRAII. Franchises shall be sold for
System Restaurants and developed in accordance with the schedule set forth in
Section 1.4 below.
1.2. Developer shall use its best efforts to market and promote the System
and sell and implement Franchises within the Development Area. In furtherance of
these duties and in accordance with the other terms and conditions of this
Agreement, Developer shall (i) develop a form of franchise agreement in
accordance with Franchisor's requirements and all applicable law; (ii) develop
promotional materials; (iii) identify and negotiate with potential franchisees
for Franchises, subject to the final approval of all Franchises by Franchisor;
(iv) negotiate and enforce franchise agreements and obligations; (v) assist
franchisees in Franchise start-up and provide training of Franchise employees;
(vi) develop and implement ongoing quality assurance programs; (vii) obtain and
maintain proprietary protection for the Proprietary Marks under all applicable
trademark treatise or, if no trademark treaty, in a commercially reasonable
manner; (viii) select System Restaurant site locations; (ix) review unit plans;
(x) select, secure and maintain an office satisfactory to Franchisor in Europe
from which BRAII's operations will be conducted, it being acknowledged that
Developer's current office identified in Section 19 below is satisfactory; and
(xi) perform other duties ancillary to the foregoing or as otherwise specified
herein, in each case in a manner which conforms with the standard practice of
Franchisor as in effect from time to time (as such standard practices shall be
communicated to Developer). Developer agrees to refrain from any business or
advertising practice which may be injurious to the business of Franchisor,
BRAII, the System, the System Restaurants or the good will associated with the
Proprietary Marks.
1.3. Developer shall develop a form of franchise agreement to be used by
BRAII in connection with all Franchises within the Development Area (the
"Franchise Agreement"). The Franchise Agreement shall be subject to the final
approval of Franchisor and shall incorporate the basic terms, obligations,
rights and remedies which are set forth in the form of domestic franchise
agreement used by Franchisor which is attached as Exhibit C to this Agreement,
subject to modifications as required by applicable law or as may otherwise be
approved by Franchisor. Developer shall hire the necessary professionals to
ensure that the form of Franchise Agreement complies with all applicable law and
that any related licenses, certifications and filings which are required to be
obtained or filed in connection with the promotion and sale of Franchises and
the use of the form of Franchise Agreement are so obtained or filed. The form of
Franchise Agreement may be modified from time to time as required by law or as
otherwise required by Franchisor. Developer shall exercise its development
rights hereunder solely by having each potential franchisee execute a Franchise
Agreement. The Franchise Agreement shall be executed by the Franchisee and
Franchisor upon Franchisor's approval and shall provide, among other
- -------------------------------------------------------------------------------
DEVELOPMENT AGREEMENT Page 2
<PAGE>
things, for the following payments, all of which shall be made by wire transfer
of immediately available funds to an account designated by BRAII:
1.3.1. Upon execution, the Franchisee shall pay BRAII a one-time
territory fee in an amount to be determined by Developer based on the number of
System Restaurants Developer estimates Franchisee will open within Franchisee's
defined territory, times $10,000;
1.3.2. Upon opening of each System Restaurant subject to the Franchise
Agreement, Franchisee shall pay BRAII a one-time opening fee of $20,000; and
1.3.3. Franchisee shall pay BRAII a monthly Franchise fee of 5% of
revenues generated by each Franchise.
1.4. Developer shall sell Franchises for System Restaurants to be developed
and opened in accordance with the following schedule (the "Development
Schedule"):
1.4.1. The Development Schedule is as follows:
Minimum cumulative number of System
Restaurant Developer must have in
Deadline: operation by deadline:
--------- -----------------------
18 mos. from January 1, 1998 2
12 mos. later 6
12 mos. later 12
12 mos. later 20
12 mos. later 30
1.4.2. Developer shall use its best efforts to sell Franchises
throughout the Development Area.
1.4.3. Developer shall use its best efforts to generate profitable
operations for BRAII under this Agreement and the Franchise Agreements.
1.5. If Developer fails to have in operation the minimum number of System
Restaurants required on the dates specified in the Development Schedule,
Franchisor, at its option, may modify the definition of "Development Area" to
delete any territory in which Developer has not sold a Franchise prior to the
applicable Development Schedule date (the "Modified Development Area") and BRAII
and/or Franchisor shall have the right, directly or indirectly through other
developers, to market, promote and sell franchises in the territories no longer
within the Development Area without any obligation or liability to Developer
hereunder with respect to such franchises, including, without limitation, with
respect to the payment of any Royalties or
- -------------------------------------------------------------------------------
DEVELOPMENT AGREEMENT Page 3
<PAGE>
other amounts which would otherwise have been payable to Developer had the
Development Area not been so modified. In the event of the foregoing, Developer
shall continue to have the rights and obligations provided herein with respect
to the Modified Development Area and any Franchises then existing or thereafter
opened in the Modified Development Area (the "Retained Franchises"); provided
that BRAII's obligation to pay the Monthly Fee shall immediately cease and any
Royalties, expense reimbursements or other amounts payable to Developer
hereunder shall thereafter be calculated based only on the Retained Franchises
and related expenses, and not on any other franchises which may be sold by
BRAII. In that regard any and all definitions and provisions contained herein
shall be automatically amended without further action to reflect the foregoing
and that the Developer's rights hereunder are no longer exclusive, except with
respect to the Modified Development Area.
1.6. BRAII shall serve as the entity through which Franchisor shall offer
Franchises and enter into Franchise Agreements for Franchises in the Development
Area. Developer shall have no right to execute Franchise Agreements or any other
agreements in the name or on behalf of Franchisor or BRAII. All revenues
generated by Developer in connection with the sale and implementation of
Franchises by Developer or BRAII shall be attributed to and paid over to BRAII.
All related expenses incurred directly by BRAII shall be charged to and paid by
BRAII. All expenses incurred by Developer or Franchisor which constitute
International Expenses or Domestic Expenses (as such terms are defined in
Section 5.3.2 and 5.3.3 below) shall be invoiced to BRAII and shall be
reimbursed to Developer and Franchisor out of Revenues (as defined in Section
5.3.1 below) as cash flow permits.
1.7. This Agreement does not grant Developer any right to use the
Proprietary Marks or the System except in connection with the fulfillment of
Developer's express obligations hereunder. Developer acknowledges that it will
have no right under this Agreement to subfranchise any other person or legal
entity to use the Proprietary Marks or the System except to Franchisees in
accordance with the terms of this Agreement and the Franchise Agreements.
2. TERM
----
2.1. Unless sooner terminated as provided herein, or extended pursuant to
Section 2.2 below, the initial term of this Agreement shall expire on the last
date set forth in the Development Schedule (the "Initial Term").
2.2. Unless sooner terminated as provided herein, if Developer shall be in
compliance with all of the following, then the rights granted hereunder shall be
extended for additional terms of one (1) year each (each a "Renewal Term" and
collectively with the Initial Term, the "Term").
2.2.1. For the first renewal, Developer shall have successfully
complied with the deadlines set forth in Section 1.4 hereof;
2.2.2. For each subsequent renewal, Developer shall have increased the
total number of System Restaurants in operation pursuant to this Agreement over
the total set forth in the Development Schedule as mutually agreed by Developer
and Franchisor.
- -------------------------------------------------------------------------------
DEVELOPMENT AGREEMENT Page 4
<PAGE>
2.3. With respect to each renewal, Developer shall not be in default of any
provision of this Agreement, any amendment hereof, or any other agreement
between Developer and Franchisor, BRAII or their affiliates, and shall have
complied in all material respects with such agreements throughout their
respective terms.
3. RIGHT TO BUY-OUT
----------------
3.1. Either party may elect to renegotiate the terms of this Agreement
pursuant to written notice thereof to the other party at least one hundred
eighty (180) days prior to the end of the Initial Term (a "Renegotiation
Notice"). If the parties are unable to renegotiate this Agreement on mutually
satisfactory terms within one hundred twenty (120) days thereafter (the
"Negotiation Period"), Franchisor shall have the right, and Developer shall have
the right to cause Franchisor (each a "Buy-Out Right"), to pay to Developer a
one-time buy-out fee equal to (i) the aggregate gross Revenues of BRAII for the
five (5) years immediately preceding the buy-out or, if five (5) years has not
elapsed since the date of this Agreement, such shorter period as has elapsed
since the date of this Agreement, less (ii) the aggregate amount of
International Expenses incurred during the five (5) years immediately preceding
the buy-out (the "Buy-Out Fee"). Either party may exercise its Buy-Out Right by
providing notice of such election to the other party within ten (10) days of the
expiration of the Negotiation Period. In the event either party exercises its
Buy-Out Right, this Agreement shall terminate fifty (50) days after receipt by
the other party of the Buy-Out Notice. For purposes of determining the Buy-Out
Fee, the terms "Revenues" and "International Expenses" shall have the meanings
ascribed to them in Section 5 below.
3.2. If the parties are able to successfully renegotiate this Agreement
within the Negotiation Period, the Renegotiation Notice shall automatically
terminate and this Agreement shall renew in accordance with Section 2.2 above,
provided that, during each subsequent Renewal Term, each of the parties shall
have the right to send a Renegotiation Notice at least one hundred eighty (180)
days prior to the expiration of the applicable Renewal Term. If the parties are
unable to renegotiate this Agreement on mutually satisfactory terms during the
Negotiation Period, each of the parties shall have the right to exercise their
Buy-Out Right as provided above. If this Agreement is not successfully
renegotiated and neither party exercises their Buy-Out Right, this Agreement
shall nevertheless terminate at the end of the applicable period.
3.3. The Buy-Out Fee may be paid by Franchisor in cash, common stock of
Franchisor, or a combination of both, at the discretion of Franchisor. In the
event Franchisor elects to pay all or a portion of the Buy-Out Fee in the form
of common stock, the number of shares of common stock subject to the Buy-Out Fee
shall be determined based on the current market price per share of Franchisor's
common stock. The current market price per share, if traded on a national
securities exchange, on any date shall be the average of the closing bid prices
on such exchange (as adjusted for any stock dividend, split, combination or
reclassification that takes effect after the date hereof) for the ten (10)
consecutive days immediately prior to the date the Buy-Out Right is exercised
or, if a weekend or holiday, on the last day the principal national securities
exchange on which the Franchisor's common stock is listed or admitted to trading
was open. If not traded on a national securities exchange, the current market
price per share
- -------------------------------------------------------------------------------
DEVELOPMENT AGREEMENT Page 5
<PAGE>
shall be determined by appraisal paid for equally by Franchisor and Developer.
The Buy-Out Fee shall be paid by Franchisor as provided in Section 3.4 below.
3.4. All calculations pursuant to this Section 3 shall be determined by
Franchisor's nationally recognized, independent certified public accountants
(the "Accountants") in accordance with generally accepted accounting principles
in effect in the United States ("GAAP") within ninety (90) days after the
expiration of the application period. The calculations of Revenues and
International Expenses shall be made by the Accountants with the assistance and
cooperation of Developer. The Buy-Out Fee shall be paid by Franchisor within
forty-five (45) days of the determination by such Accountants of the amount of
the Buy-Out Fee.
3.5. If more than sixty percent (60%) of the Buy-Out Fee is to be paid in
the form of the Franchisor's common stock, at Developer's request, at any time
after payment of the Buy-Out Fee and prior to the time Developer is required to
pay taxes on account of receipt of the Buy-Out Fee, Franchisor shall register
that number of shares of Franchisor's common stock, on a registration statement
on Form S-3 if available to Franchisor, paid to Developer as part of the Buy-Out
Fee having an aggregate current market price (as determined pursuant to Section
3.3 above) which, when combined with the amount of cash paid to Developer as
part of the Buy-Out Fee, equals forty percent (40%) of the total Buy-Out Fee;
provided that Franchisor shall only be obligated to keep such registration
effective for a period of sixty (60) days and further provided that Franchisor
shall have no obligation to register any such shares to the extent Developer is
permitted to sell such shares under Rule 144, as promulgated under the
Securities Act of 1933, as amended (the "Act"). Any shares of Franchisor's
common stock paid as part of the Buy-Out Fee to Tumbleweed International, LLC
("Tumbleweed") shall be deposited by Tumbleweed into a voting trust pursuant to
which a voting trustee acceptable to Franchisor, in its sole and absolute
discretion, shall be granted the irrevocable right to vote all of such shares in
such voting trustee's discretion. Any shares shall automatically be released
from the voting trust on the earlier to occur of (i) the fifth anniversary of
the deposit of such shares into the voting trust or (ii) as and when such shares
are sold by Tumbleweed in the public market.
3.6. In the event Developer receives any Buy-Out Shares and Franchisor
subsequently determines to register any shares of its common stock under the Act
and, in connection therewith, Franchisor may lawfully register any of the
Buy-Out Shares, (other than pursuant to a registration statement on Form S-4,
S-8 or any comparable form or filed in connection with an exchange offering of
securities solely to Franchisor's existing shareholders) Franchisor will
promptly give written notice thereof to Developer. Upon the written request of
Developer within thirty (30) days after receipt of any such notice from
Franchisor, Franchisor will, except as herein provided, cause all of the Buy-Out
Shares which Developer has requested to be registered to be included in such
registration statement, all to the extent requisite to permit the sale or other
disposition of the Buy-Out Shares. However, nothing herein shall prevent
Franchisor from at any time abandoning or delaying any registration. If any
Shares registered pursuant to this Section 3.6 shall be included in an
underwritten public offering in whole or in part, Franchisor may require that
the Buy-Out Shares requested for inclusion hereunder be included in the
underwriting on the same terms and conditions as the securities otherwise being
sold through the underwriters are being sold. If and in the event that the
managing underwriter of such public offering shall be of the opinion that
inclusion of all of the Buy-Out Shares would adversely affect the marketing of
the
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DEVELOPMENT AGREEMENT Page 6
<PAGE>
securities to be sold by the Franchisor therein, then the number of Buy-Out
Shares otherwise to be included in the underwritten public offering may be
reduced on a pro rata basis with the shares proposed to be included in such
offering by any other selling shareholder (exclusive of Franchisor). Anything
herein to the contrary notwithstanding, Franchisor shall not be obligated to
provide the foregoing so-called "piggyback" registration rights on more than
four (4) occasions.
3.7. Franchisor may accelerate its Buy-Out Right in the event of the death
or Disability (as defined in Section 17.1 below) of Terrance Smith or in the
event Terrance Smith ceases to own at lease ten percent (10%) or ceases at any
time to be the largest stockholder of Developer or its Permitted Transferee or
chief executive officer of Developer or its Permitted Transferee. Developer may
accelerate its Buy-Out Right in the event George Chapdelaine ceases to be the
chief executive officer of Franchisor. In the event of such acceleration, the
Buy-Out Fee shall be determined as of the end of the most recent year of the
Term based on the immediately preceding five (5) years or, if five (5) years has
not elapsed since the date of this Agreement, such shorter period as has elapsed
since the date of this Agreement. In the event this Agreement is terminated by
Franchisor pursuant to Section 17 below (other than due to the death or
Disability of Terrance Smith), the Buy-Out Fee otherwise payable to Developer in
connection with such termination shall be deposited into escrow or paid into
court by Franchisor until such time as all damages (including reasonable
attorney's fees and expenses) related to such termination have been finally
determined (collectively, "Damages"). Following final determination of Damages,
Franchisor shall pay to Developer the amount of the Buy-Out Fee deposited in
escrow or court less the amount of the Damages, either in cash or common stock
as provided above.
4. MONTHLY DEVELOPMENT FEE
-----------------------
In consideration of Developer's performance of its obligations hereunder,
BRAII will pay Developer a monthly fee of Seven Thousand Dollars ($7,000);
provided, however, such fee shall accrue only and not be paid until the first
day of the month immediately following the first month in which BRAII's positive
cash flow equals or exceeds $7,000 after payment of all accrued but unpaid
International Expenses and Domestic Expenses and then and thereafter only to the
extent there continues to be positive cash flow of BRAII (the "Monthly
Development Fee"). The Monthly Development Fee shall continue for a period of
sixty (60) months, provided this Agreement has not been earlier terminated.
5. ROYALTY
-------
Commencing with the first quarter after BRAII experiences positive cash
flow and continuing every quarter thereafter during which BRAII has a positive
cash flow during the Term thereafter, BRAII shall pay to Developer a royalty
(the "Royalty") equal to 40% (which percentage shall be subject to adjustment
pursuant to Section 5.1.1.1) of (i) the aggregate gross Revenues generated by
BRAII during the immediately preceding three (3) month period less (ii) the
aggregate amount of International Expenses incurred during that same period. The
remaining 60% (which percentage shall be subject to adjustment pursuant to
Sections 5.1.1 below) of the Formula Amount shall be paid by BRAII to
Franchisor.
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DEVELOPMENT AGREEMENT Page 7
<PAGE>
5.1.1. The percentages of the Formula Amount to which Developer and
Franchisor shall be entitled for any applicable period shall be adjusted as
follows:
5.1.1.1. If International Expenses equal or exceed 50% of
Revenues for the applicable period, the percentage of the Formula Amount to
which Developer and Franchisor shall be entitled for that period shall be
adjusted as follows:
o If International Expenses are between 50% and 51% of
Revenues, no adjustments;
o If International Expenses are between 51% and 52% of
Revenues, the applicable percentages shall be Developer 39%
and Franchisor 61%;
o If International Expenses are between 52% and 53% of
Revenues, the applicable percentages shall be Developer 38%
and Franchisor 62%;
o If International Expenses are between 53% and 54% of
Revenues, the applicable percentages shall be Developer 37%
and Franchisor 63%;
o If International Expenses are between 54% and 55% of
Revenues, the applicable percentages shall be Developer 36%
and Franchisor 64%;
o If International Expenses are greater than or equal to 55%
or Revenues, the applicable percentages shall be Developer
35% and Franchisor 65%.
5.1.1.2. If International Expenses are less than 50% of Revenues
for the applicable period, the percentage of the Formula Amount to which
Developer and Franchisor shall be entitled for that period shall be adjusted as
follows:
o If International Expenses are between 49% and 50% of
Revenues, no adjustments;
o If International Expenses are between 48% and 49% of
Revenues, the applicable percentages shall be Developer 41%
and Franchisor 59%;
o If International Expenses are between 47% and 48% of
Revenues, the applicable percentages shall be Developer 42%
and Franchisor 58%;
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DEVELOPMENT AGREEMENT Page 8
<PAGE>
o If International Expenses are between 46% and 47% of
Revenues, the applicable percentages shall be Developer 43%
and Franchisor 57%;
o If International Expenses are between 45% and 46% of
Revenues, the applicable percentages shall be Developer 44%
and Franchisor 56%;
o If International Expenses are less than 45% of Revenues, the
applicable percentages shall be Developer 45% and Franchisor
55%.
5.2. [INTENTIONALLY DELETED]
5.3. For purposes of this Agreement, including the determination of the
foregoing amounts, the terms "Revenues", "International Expenses" and "Domestic
Expenses" shall have the following meanings, in each case as determined by the
Accountants in accordance with GAAP and, with respect to Revenues and
International Expenses, with the assistance and cooperation of Developer:
5.3.1. "Revenues" shall mean all amounts actually collected by and/or
paid to BRAII as a result of Developer's activities pursuant to this Agreement.
5.3.2. "International Expenses" shall mean all direct out-of-pocket
costs and expenses incurred by Developer or BRAII in connection with the
marketing and promotion of the System and the sale and implementation of
Franchises for System Restaurants in the Development Area, including, but not
limited to, costs and expenses for or related to all legal and franchise law
compliance and other licensing and legal compliance matters; the protection and
enforcement of the Proprietary Marks, including trademark registration and
enforcement provided that Developer shall be required to take only commercially
reasonable actions in connection with such enforcement and in no event shall
Developer be required to incur more than USD $100,000 in any single enforcement
action, and further provided that Franchisor shall advance fifty percent (50%)
of all related costs; the development of a model franchise agreement including
related professional fees; the marketing and selling of Franchises, including
related printing and advertising costs as well as any related travel or other
out-of-pocket expenses; the training of Franchise employees; the development and
implementation of ongoing quality assurance programs; development fees, current
and accrued; the enforcement of Franchisor's and BRAII's rights against any
Franchise operator or under any applicable Franchise Agreement; and any
accounting or audit matters, including as required by this Agreement. Such costs
and expenses which are jointly incurred with Developer's existing "Chi-Chi"
operations or any other operations of Developer shall be prorated appropriately.
5.3.3. "Domestic Expenses" shall mean all direct out-of-pocket costs
and expenses incurred by Franchisor in connection with the marketing and
promotion of the System and the sale and implementation of Franchises for System
Restaurants in the Development Area
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DEVELOPMENT AGREEMENT Page 9
<PAGE>
including, but not limited to, costs and expenses for or related to legal,
accounting and audit matters; the development and printing of Franchise
material; and travel, telephone and postage.
5.4. The Accountants shall conduct an annual audit in accordance with GAAP
of BRAII's Revenues and of the International Expenses and Domestic Expenses,
within one-hundred twenty (120) days of the end of the each year of the Initial
Term. The Accountants shall focus the audit of the International Expenses on the
allocation of such expenses between BRAII and Developer's "Chi-Chi" or other
operations. A synopsis of such allocation shall be provided annually by
Developer to the Accountants.
5.5. [INTENTIONALLY DELETED]
5.6. [INTENTIONALLY DELETED]
5.7. Developer and Franchisor shall bear the International Expenses and
Domestic Expenses, respectively, subject to reimbursement by BRAII from Revenues
as cash flow permits. The International Expenses and Domestic Expenses shall
accrue and be payable by BRAII at such time as sufficient Revenues are generated
by international operations to cover such accrued expenses, prior to the payment
of any Monthly Development Fee. At least sixty (60) days but no more than ninety
(90) days prior to the commencement of each year during the Term, Developer and
Franchisor shall prepare and submit to each other an annual budget for the
projected International Expenses and Domestic Expenses, and Developer shall also
prepare a projected Revenue budget (the "Annual Budget"). Franchisor and
Developer shall have forty-five (45) days thereafter to review and either agree
to the Annual Budget or provide comments thereon. The parties shall use their
best good faith efforts to finalize a mutually acceptable Annual Budget prior to
commencement of the applicable year of the Term.
6. SITE SELECTION
--------------
6.1. Developer shall approve Franchisee's site for each System Restaurant
to be developed hereunder subject to standards approved by Franchisor. Before
committing to a site or allowing a Franchisee to commit to a site, Developer
shall submit to Franchisor such information and materials as Franchisor may
reasonably request to evaluate the site. After receipt of such information and
materials, Franchisor, in its sole discretion, shall approve or refuse to
approve the proposed site. Should Franchisor refuse the proposed site Franchisor
will state the reasons in writing for the refusal. Franchisor shall either
approve or reject a proposed site not later than ten (10) days after receipt of
all information and materials requested pursuant to this Section 6.1. No site
shall be deemed to have received Franchisor's approval unless it has been
approved in writing by Franchisor. The site approved in writing by Franchisor
shall be the "Approved Location" referred to in the applicable Franchise
Agreement.
6.2. Franchisor shall furnish to Developer the following:
6.2.1. Site selection guidelines and criteria, and such site selection
counseling and assistance as Franchisor and/or Developer may deem advisable;
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DEVELOPMENT AGREEMENT Page 10
<PAGE>
6.2.2. Such on-site evaluations, if any, as Franchisor may deem
advisable in response to Developer's request for Franchisor's approval of a
proposed site; and
6.2.3. Franchisor will provide preliminary plans and specifications
for construction of a System Restaurant, including exterior and interior design
and layout plans. Such plans shall not be architectural drawings.
6.3. If a Franchisee will occupy the premises of a System Restaurant under
a lease, Developer shall cause the Franchisee, prior to the execution of the
lease, to submit an English summary of the material terms of the lease signed by
Franchisee to Franchisor for its written approval. No lease shall be executed
unless previously approved by Franchisor in its reasonable discretion.
7. TRAINING OF SYSTEM RESTAURANT EMPLOYEES
--------------------------------------
Developer shall fulfill Franchisor's responsibility under each Franchise
Agreement to conduct training for each manager, assistant manager, and chef of a
System Restaurant. The content and administration of Developer's training
program shall be at least equal to those of Franchisor's training program, shall
be approved in advance by Franchisor, and shall include ongoing quality
assurance in accordance with Section 9 below, for the duration of each
Franchise. Franchisor shall have the right to review Developer's training
program periodically to ensure its quality and to verify that managers,
assistant managers, and chefs are being trained in a timely and satisfactory
manner. Franchisor shall notify Developer of any deficiencies in the training
program. If Developer fails to cure such deficiencies within a reasonable time,
Franchisor may revoke its approval of the training program and require all
System Restaurant managers, assistant managers, and chefs to attend training
conducted by Franchisor at a cost to Developer of USD $500 per trainee (which
expense shall be excluded from the definition of International Expenses for
reimbursement purposes), until such time as Developer has conformed its training
program to comply with Franchisor's standards.
8. PROMOTIONAL MATERIALS; OPERATIONS MANUALS
-----------------------------------------
Franchisor shall provide to Developer, on loan, for furnishing to each
Franchisee, one set of Franchisor's confidential Operations Manuals, as they
exist from time to time (the "Manuals"). The Manuals shall remain the sole
property of Franchisor and Developer shall advise each Franchisee of the
confidential and proprietary nature of the Manual and that any Manuals which are
transmitted by e-mail shall be accessible only by approved personnel, and
Franchisee shall take all reasonable measures to maintain the security and
confidentiality of the Manuals. With respect to any hard copies of Manuals which
are provided to Franchisees, Developer shall advise Franchisee to keep the
Manuals in a secure place at all times and Developer shall advise Franchisee
that it shall not photocopy, duplicate, record, or otherwise reproduce the
Manuals or any of their contents without the prior written consent of
Franchisor.
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DEVELOPMENT AGREEMENT Page 11
<PAGE>
9. QUALITY ASSURANCE
-----------------
Developer shall use Franchisor's program of ongoing quality assurance for
each of the System Restaurants for the duration of each Franchise. Developer
ohall communicate such standards in writing to each Franchisee and shall make
regular and periodic on-site visits to ensure compliance by each Franchisee of
the quality assurance program.
10. START-UP OF SYSTEM RESTAURANTS
-------------------------------
Subject to the terms and conditions of this Agreement, Developer shall act
on Franchisor's behalf and in cooperation with Franchisor to fulfill
Franchisor's responsibility under each Franchise Agreement to assist each
Franchisee in starting up a System Restaurant. Such assistance shall include
designating exclusive territories; assisting in site selection; assisting in
lease negotiations or site purchases; assisting with written specifications for
store construction and/or remodeling; designating uniforms to be worn by
employees; training Franchisees in start-up methods, operations standards, pizza
production and customer service; providing general advice and assistance;
advising of additions or deletions in approved products; advising on the use of
the Proprietary Marks and the Manuals; advising of any changes to the Manuals;
merchandising products; implementing employee selection criteria, motivation and
loyalty programs; assisting in interpretation of operations standards;
undertaking periodic inspections of each System Restaurant and taking corrective
action based on the results of such inspections; and performing any other
responsibilities of Franchisor other than those obligations which relate to the
development, addition or deletion of products and methods. Developer shall
perform Franchisor's responsibilities in a professional manner in accordance
with the guidelines and standards established herein or hereinafter by
Franchisor from time to time.
11. COMPLIANCE WITH LAWS
--------------------
11.1. Developer shall use its best efforts to secure, maintain, enforce and
comply in all material respects with all applicable laws and all required
licenses, permits, franchises and certificates relating to the marketing,
promotion, sale and implementation of each Franchise by Franchisor, BRAII or
Developer, including, without limitation, all government regulations relating to
food service businesses, franchising, licensing, withholding of income taxes,
social security taxes, sales taxes, value added taxes, other taxes and the
protection of the Proprietary Marks. Developer shall use its best efforts to
assure that the Franchise Agreements comply in all material respects with all
applicable laws and, subject to Section 5.3.2, shall use its best efforts to
enforce the Franchise Agreements against any Franchisee who operates a System
restaurant in violation of any of the foregoing.
11.2. Developer shall make all necessary applications to obtain proprietary
protection for all of the Proprietary Marks under applicable trademark treatise
or, if no such treatise is in effect, under all applicable laws within the
Development Area, to the extent such protection is available. Developer
acknowledges that Franchisor is the owner of all of the Proprietary Marks
licensed to Developer by this Agreement and that Developer's right to use the
Proprietary Marks is derived solely from this Agreement and is limited to the
marketing and promotion of the System and the sale and implementation of the
Franchises in compliance with this Agreement in the Development Area and by all
applicable standards, specifications and operating procedures prescribed by
Franchisor from time to time during the Term. Developer agrees that all usage of
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DEVELOPMENT AGREEMENT Page 12
<PAGE>
the Proprietary Marks by Developer and any good will established thereby shall
inure to the exclusive benefit of Franchisor and BRAII. Developer shall
immediately notify Franchisor of any impairment or infringement of, or challenge
to, Franchisor's, BRAII's, Developer's, or any Franchisee's use of any of the
Proprietary Marks, or any claim by any person of any rights in any Proprietary
Mark, in each case upon Developer's immediately becoming aware of such
impairment, infringement, challenge or claim. Developer shall not communicate
with any person other than Franchisor, BRAII and their counsel in connection
with any such infringement, challenge or claim. Developer and Franchisor, acting
reasonably, shall mutually agree as to the action, if any, to be taken in
connection with such infringement, challenge or claim. Subject to the foregoing,
Developer shall take all commercially reasonable actions to the extent provided
in Section 5.3.2 to enforce and protect the Proprietary Marks. At the direction
of Franchisor, Developer shall take action on behalf of Franchisor in connection
with such claim, provided that ultimate control of any litigation or other
administrative proceeding arising out of any such impairment, infringement,
challenge or claim, or otherwise relating to any Proprietary Mark, shall remain
with Franchisor. The cost of all action taken at the direction of Franchisor by
Developer will constitute Domestic Expenses unless such action is occasioned by
Developer's failure to materially comply with any of its obligations hereunder.
12. ENFORCEMENT OF FRANCHISE AGREEMENTS
-----------------------------------
12.1. With the prior approval and input of Franchisor, Developer shall take
such actions as are necessary to enforce Franchisor's rights and remedies under
each of the Franchise Agreements including, without limitation, retaining
counsel to initiate legal action against a Franchisee. Developer shall notify
Franchisor and BRAII of any breach of any Franchise Agreement promptly upon
Developer's becoming aware of such breach, together with Developer's recommended
course of action. Following such notice, Franchisor shall advise Developer of
how to proceed with respect to such breach. Developer shall keep Franchisor
informed of any enforcement action, however, Franchisor shall have the right to
control or instruct Developer in connection with any such action. The cost of
all action taken at the direction of Franchisor by Developer will constitute
Domestic Expenses unless such action is occasioned by Developer's failure to
materially comply with any of its obligations hereunder.
13. ADVERTISING AND MARKETING
-------------------------
13.1. Developer and Franchisor shall together develop marketing and
promotional materials for use by Developer in the marketing and promotion of the
System and the sale of Franchises. All advertising and promotion by Developer
shall be completely factual and shall conform to the commercially acceptable
standards of ethical advertising. Developer will not incur any liability on
behalf of Franchisor or BRAII nor make any claims, warranties or representations
with respect to the System, the System Restaurants or the Franchises, except for
those which have been previously approved in writing by Franchisor or as
permitted under this Agreement. All advertising of the Franchises and the System
by Developer will be in accordance with the highest standards of advertising and
ethics. If Franchisor disapproves of any such advertising or promotion,
Developer shall cease use of such advertising.
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DEVELOPMENT AGREEMENT Page 13
<PAGE>
13.2. Developer will furnish to each Franchisee ad formats and point of
sale and media advertising materials produced by Franchisor for System
Restaurants.
14. CONFIDENTIAL INFORMATION
------------------------
14.1. Developer shall not, during the term of this Agreement or at any time
thereafter, communicate, divulge, or use for the benefit of itself or any other
person or entity any confidential information, knowledge, criteria analysis and
systems, trade secrets, proprietary technology or know-how of BRAII or
Franchisor which may be communicated to Developer or of which Developer may be
apprised by virtue of Developer's activities under this Agreement. Developer may
divulge such confidential information only: (i) to employees of Developer on a
need-to-know basis; and (ii) to prospective Franchisees (who shall be subject to
the confidentiality provisions contained in or required by the Franchise
Agreement). All information, knowledge, trade secrets, know-how, techniques, and
other data which Franchisor designates as confidential shall be deemed
confidential for purposes of this Agreement, except information which Developer
can demonstrate came to its attention by lawful means prior to disclosure
thereof by Franchisor, or which, at or after the time of disclosure by
Franchisor to Developer, had become or later becomes a part of the public
domain, through publication or communication by others.
14.2. At Franchisor's request, Developer shall require its employees,
prospective or existing Franchisees, and any other person to whom Developer
wishes to disclose any confidential information of Franchisor to execute
covenants that they will maintain the confidentiality of such information. Such
covenants shall be in a form satisfactory to Franchisor, including, without
limitation, specific identification of Franchisor as a third-party beneficiary
with the independent right to enforce the covenants.
15. CORPORATE REQUIREMENTS; FINANCIAL STATEMENTS
--------------------------------------------
If Developer is a corporation, limited liability company or partnership
during the term of this Agreement, Developer shall furnish Franchisor with a
copy of its charter documents, memoranda of association, Bylaws, and any other
corporate governing documents.
16. TRANSFER OF INTEREST
--------------------
16.1. Franchisor shall have the right to transfer or assign its rights
under this Agreement solely to the extent provided below.
16.2. Developer understands and acknowledges that the rights and duties set
forth in this Agreement are granted in reliance on the business skill, financial
capacity, and personal character of Terrance Smith. Accordingly, neither
Developer nor any immediate or remote successor to any part of Developer's
interest in this Agreement, nor any individual, partnership, corporation, or
other legal entity which directly or indirectly owns any interest in Developer,
shall sell, assign, transfer, convey, or give away (each a "Transfer") any
direct or indirect interest in Developer or in this Agreement without the prior
written consent of Franchisor, which consent may be withheld by Franchisor in
its sole and absolute discretion, except that (i) Developer may issue up
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DEVELOPMENT AGREEMENT Page 14
<PAGE>
to ten percent (10%) of its capital stock outstanding from time to time to
employees of Developer provided Terrance Smith at all time remains the largest
stockholder of Developer and holds at least a ten percent (10%) ownership
interest in Developer and (ii) Developer and its current stockholders may
effectuate a Transfer of their respective interests in this Agreement or in
Developer itself (whether by sale of stock or assets or by merger) to Tumbleweed
or a wholly owned subsidiary of either such entity without the consent of
Franchisor; provided that after any such Transfer (including a transfer to
Tumbleweed), Terrance Smith shall be the chief executive officer involved in the
day-to-day business of Tumbleweed, Developer or other assignee or
successor-in-interest of Developer or Tumbleweed (whichever person holds the
rights under this Agreement) and further provided that Terrance Smith shall hold
at least a ten percent (10%) ownership interest in Tumbleweed, Developer or such
other assignee or such successor-in-interest of Developer or Tumbleweed. In the
event Tumbleweed is merged or otherwise rolled into Tumbleweed, LLC, or a
successor entity of Tumbleweed formed, and into which it and Tumbleweed, LLC's
operations may be transferred, for the purpose of effectuating an underwritten
public offering of the stock of such combined entities after Tumbleweed becomes
the Developer hereunder, prior to such merger or roll-up, Franchisor's Buy-Out
Right shall be accelerated and Franchisor shall have fifty (50) days after
receipt of written notice of Developer's intention to roll-up into Tumbleweed,
LLC to elect to effectuate such Buy-Out Right in accordance with Section 3
hereof, or, in Franchisor's sole discretion, to consent to such roll-up;
provided that, notwithstanding anything to the contrary contained elsewhere
herein, Franchisor's consent shall be in any event conditioned upon Terrance
Smith at all times thereafter remaining responsible for and integrally involved
in the day-do-day business and operations of Developer or its successor in
connection with this Agreement and, to the extent the entity into which
Tumbleweed is rolled up is a subsidiary of Tumbleweed, LLC (or its successor),
Terrance Smith shall also act as the chief executive officer of such subsidiary,
and further provided that, in the event Terrance Smith does not at any time have
the foregoing responsibilities, Franchisor may elect to exercise its Buy-Out
Right in accordance with Section 3 hereof. Any person to whom a Transfer is made
in accordance with this Section 16.2 (including Tumbleweed) shall be a
"Permitted Transferee" for purposes of this Agreement and shall be responsible
for the performance of all of the obligations of Developer contained herein. In
addition, if the Permitted Transferee is Tumbleweed, Tumbleweed, each of its
executive management (above unit levels, including area managers) and officers
shall each execute a noncompetition and proprietary information agreement in
favor of Franchisor and BRAII as set forth in Section 18 hereof. If the
Permitted Transferee is not Tumbleweed, than only such Permitted Transferee, its
executive management and its officers shall be required to execute such an
agreement. Developer shall notify Franchisor in writing of any proposed transfer
at least thirty (30) days before such transfer is to take place, and shall
provide such information and documentation relating to the proposed transfer as
Franchisor may reasonably request. Furthermore, Developer acknowledges and
agrees that a condition essential to this Agreement is that the services to be
provided hereunder are to be performed exclusively by Developer and Developer
shall not delegate or sub-broker any of its rights or obligations hereunder,
without the prior written permission of Franchisor. Any purported assignment,
transfer, delegation or sub-brokerage not having the written consent of
Franchisor required by this Section 16.2 shall be null and void and shall
constitute a material breach of this Agreement, for which Franchisor may
immediately terminate this Agreement without opportunity to cure pursuant to
Section 17.2 of this Agreement.
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DEVELOPMENT AGREEMENT Page 15
<PAGE>
16.3. Developer further agrees that:
16.3.1. Developer shall not pledge or otherwise encumber this
Agreement or any interest of Developer herein as security for any loan or other
obligation; and
16.3.2. Neither Developer nor any individual, partnership,
corporation, or other legal entity which directly or indirectly owns any
interest in Developer shall: (i) pledge or otherwise encumber any ownership
interest in Developer; or (ii) offer or sell securities of Developer by public
offering.
16.4. Developer shall pay a transfer fee of Twenty-Five Hundred Dollars
($2,500) plus Franchisor's actual and reasonable expenses for outside services
associated with reviewing the application to transfer, including, but not
limited to, reasonable attorneys' fees.
16.5. The executor or personal representative of a person with an interest
in Developer shall transfer such person's interest to a third party approved by
Franchisor, approval not to be unreasonably withheld within a reasonable time
after the date of such person's death or declaration of such person's mental
incapacity. In the case of transfer by bequest, if the beneficiaries are unable
to meet the conditions of this Section 16, the executor shall transfer the
deceased's interest to another party approved by Franchisor within a reasonable
time, subject to all the terms and conditions for transfers contained in this
Section 16. If the interest is not disposed of within two (2) years from the
date of death or appointment of a personal representative, Franchisor may
terminate this Agreement by written notice.
16.6. Franchisor's consent to a transfer shall not constitute a waiver of
any claims Franchisor may have against the transferring party, nor shall it be
deemed a waiver of Franchisor's right to demand exact compliance with any of the
terms of this Agreement by the transferor or transferee.
17. DEFAULT AND TERMINATION
17.1. Developer shall be in default under this Agreement, and all rights
granted herein shall automatically terminate without notice to Developer, if
Developer becomes insolvent or makes a general assignment for the benefit of
creditors; if a petition in bankruptcy is filed by Developer or such a petition
is filed against Developer and not opposed by Developer; if Developer is
adjudicated as bankrupt or insolvent; if a bill in equity or other proceeding
for the appointment of a receiver of Developer or other custodian for
Developer's business or assets is filed and consented to by Developer; if a
receiver or other custodian (permanent or temporary) of Developer's assets or
property, or any part thereof, is appointed by any court of competent
jurisdiction; if proceedings for a composition with creditors under any state or
federal law is instituted by or against Developer; if a final judgment remains
unsatisfied or of record for thirty (30) days or longer (unless a bond is
filed); if Developer is dissolved; if execution is levied against Developer's
business or property; or if Terrance Smith ceases to own ten percent (10%) of
Developer or any Permitted Transferee or ceases at any time to be the largest
stockholder of Developer or its Permitted Transferee or cease to be the chief
executive officer actively and integrally involved in the fulfillment of
Developer's or any Permitted Transferee's obligations
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DEVELOPMENT AGREEMENT Page 16
<PAGE>
hereunder for any reason, including the death or Disability of Terrance Smith.
For purposes hereof, "Disability" shall mean the inability of Terrance Smith to
perform the obligations and responsibilities of Developer hereunder for an
aggregate of one hundred twenty (120) days or sixty (60) consecutive days during
any three hundred sixty-five (365) day period.
17.2. Franchisor shall have the right to terminate this Agreement,
effective immediately upon the receipt of written notice by Developer, if any of
the following events occurs:
17.2.1. In the event of any transfer of an interest in Developer or in
this Agreement which does not comply with Section 16 of this Agreement, or any
transfer of an interest in Developer by intestate succession to an heir who is
unable to meet the conditions of Section 16.5; or
17.3. If Developer fails to cure any material default of any material
provision of this Agreement within fifteen (15) days after receiving written
notice of default from Franchisor, this Agreement shall terminate at the end of
such fifteen (15) day period without further notice from Franchisor (provided
that Developer shall not have any opportunity to cure any breach that by its
nature is not susceptible to cure and further provided that Developer shall be
given reasonable additional time to cure should Developer be diligently pursuing
the cure and should such additional cure period not materially affect Franchisor
or BRAII).
17.4. Upon termination of this Agreement, Developer shall have no right to
market or promote the System or sell or implement Franchises, and Franchisor
shall be entitled to establish, and to franchise others to establish, System
Restaurants at any location in the Development Area.
17.5. No right or remedy herein conferred upon or reserved to Franchisor is
exclusive of any other right or remedy provided or permitted by law or in
equity.
18. COVENANTS
---------
18.1. Developer acknowledges that, pursuant to this Agreement, Developer
will receive valuable confidential information, including, without limitation,
information regarding the site selection, marketing, and food preparation
techniques of Franchisor and the System. Developer covenants that, during the
term of this Agreement, Developer shall not, either directly or indirectly, for
itself, or through, on behalf of, or in conjunction with any person or legal
entity:
18.1.1. Divert or attempt to divert any present or prospective
franchisor or customer of a System Restaurant to any competitor, by direct or
indirect inducement or otherwise, or do or perform, directly or indirectly, any
other act injurious or prejudicial to the goodwill associated with the
Proprietary Marks and the System;
18.1.2. Own, manage, operate, engage in, be employed by, provide any
assistance to, or have any interest in (as owner or otherwise) any other
business whose sales of pizza and related products (other than Mexican/South
Western pizza or products, provided that Developer shall not use brick ovens in
connection therewith, including without limitation, the proprietary
- -------------------------------------------------------------------------------
DEVELOPMENT AGREEMENT Page 17
<PAGE>
ovens of BRAII or Franchisor or any derivations thereof), are more than five
percent (5%) of its total sales by annual dollar value.
18.2. In the event of a Buy-Out, Developer covenants that, except as
otherwise approved in writing by Franchisor, Developer shall not, during the
period commencing with the expiration or termination of this Agreement or the
approved transfer of this Agreement to a new developer, and continuing for a
period ending two (2) years after the Buy-Out either directly or indirectly, for
itself or through, on behalf of, or in conjunction with any person or legal
entity, own, maintain, operate, engage in, be employed by, provide assistance
to, or have any interest in any business whose sales of pizza, other than
Mexican/South Western pizza or products, provided that Developer shall not use
brick ovens in connection therewith, including without limitation, the
proprietary ovens of BRAII or Franchisor or any derivations thereof, related
products, and manufacture of brick ovens are more than five percent (5%) of its
total sales by annual dollar volume on a worldwide basis.
18.3. Sections 18.1.2 and 18.2 shall not apply to ownership by Developer of
a less than five percent (5 %) beneficial interest in the outstanding equity
securities of any publicly held corporation.
18.4. Developer understands and acknowledges that Franchisor shall have the
right, in its sole discretion, to reduce the scope of any covenant set forth in
Sections 18.1 and 18.2 of this Agreement, or any portion thereof, without
Developer's consent, effective immediately upon receipt by Developer of written
notice thereof; and Developer agrees that it shall comply forthwith with any
covenant as so modified, which shall be fully enforceable notwithstanding
anything to the contrary contained in this Agreement.
18.5. Developer agrees that the existence of any claims it may have against
Franchisor, whether or not arising from this Agreement, shall not constitute a
defense to the enforcement by Franchisor of the covenants in this Section 18.
Developer agrees to pay all costs and expenses incurred by Franchisor in
enforcing this Section 18, including, but not limited to, reasonable attorneys
fees.
18.6. Developer acknowledges that Developer's violation of the terms of
this Section 18 would result in irreparable injury to Franchisor for which no
adequate remedy at law may be available, and Developer accordingly consents to
the issuance of an injunction prohibiting any conduct by Developer in violation
of the terms of this Section 18. Such injunctive relief shall be in addition to
any other remedies Franchisor may have.
18.7. At Franchisor's request, Developer shall obtain and furnish to
Franchisor executed covenants similar in substance to those set forth in this
Section 18 (including covenants applicable upon the termination of an
individual's relationship with Developer) from any or all executive management
(above the unit level including area managers), officers and holders of a direct
or indirect beneficial interest of five percent (5%) or more of the securities
of Developer. Every covenant required by this Section 18.7 shall be in a form
satisfactory to Franchisor, including, without limitation, specific
identification of Franchisor as a third party beneficiary with the independent
right to enforce the covenant.
- -------------------------------------------------------------------------------
DEVELOPMENT AGREEMENT Page 18
<PAGE>
18.8. Developer covenants and agrees that upon termination of this
Agreement for any reason, Developer shall make available to Franchisor and BRAII
for employment or other engagement by Franchisor and/or BRAII, any person who
was, at the time of termination or within the one year period prior to
termination, a full-time employee (other than Terrance Smith), of Developer or
BRAII in connection with this Agreement, the Franchises or the System
Restaurants; provided that Developer makes no guarantee that any such person
will accept employment with Franchisor or BRAII. In the event that any such
person does not accept employment with Franchisor or BRAII, Developer shall not
employ such person for a period of one (1) year thereafter. For purposes hereof
"full-time" shall mean thirty (30) hours or more. Any non-full-time employees
may be employed by Developer.
18.9. Developer understands, covenants and agrees that the brick ovens used
in the System Restaurants contain proprietary technology which Developer shall
have no right to use, sell or divulge. Developer fully agrees that such brick
ovens will be leased to Franchisees under the Franchise Agreements subject to
payment of an up-front license fee and that the Franchise Agreement will provide
that title to the brick ovens will be returned to Franchisor upon termination of
the applicable Franchise Agreement.
19. NOTICES
All notices pursuant to this Agreement shall be in writing and shall be
personally delivered, sent by registered mail, or delivered or sent by another
method which affords the sender evidence of receipt or attempted delivery, to
the respective parties at the following addresses, unless and until a different
address has been designated by written notice to the other party:
Notices to Franchisor:
Boston Restaurant Associates, Inc.
Stonehill Corporate Center
999 Broadway, Suite 400
Saugus, MA 01906
Attn: Chief Executive Officer
Tel: 617 231-7575
Fax: 617 231-5225
with a copy to:
Brown, Rudnick, Freed & Gesmer, P.C.
One Financial Center
Boston, MA 02111
Attn: Gordon R. Penman, Esquire
Tel: 617 856-8200
Fax: 627 856-8201
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DEVELOPMENT AGREEMENT Page 19
<PAGE>
Notices to Developer:
Terrance Smith
Regina International Ltd.
541 Steenweg op Brussel
3090 Overijse
Belgium
Tel: 011 322 657 0555
Fax: 011 322 657 0247
with a copy to:
Michael Fleishman, Esquire
Greenebaum Doll & McDonald PLLC
3300 National City Tower
101 South Fifth Street
Louisville, KY 40202-3197
Tel: 502 587-3530
Fax: 502 587-3695
Any notice sent or delivered which affords the sender evidence of receipt
or attempted delivery shall be deemed to have been given and received at the
date and time of receipt or attempted delivery.
20. INDEPENDENT CONTRACTOR AND INDEMNIFICATION
------------------------------------------
20.1. It is understood and agreed by the parties that this Agreement does
not create a fiduciary relationship between them; that Developer is an
independent contractor; and that nothing in this Agreement is intended to make
either party an agent, legal representative, subsidiary, joint venturer,
partner, employee, or servant of the other for any purpose whatsoever.
20.2. Developer shall hold itself out to the public to be an independent
contractor operating pursuant to this Agreement. Developer agrees to take such
actions as shall be necessary to that end.
20.3. Nothing in this Agreement authorizes Developer to make any contract,
agreement, warranty, or representation on Franchisor's behalf, or to incur any
debt or other obligation in Franchisor's name. Franchisor shall in no event
assume liability for, or be deemed liable hereunder as a result of, any such
action, nor shall Franchisor be liable by reason of any act or omission of
Developer or any claim or judgment arising therefrom against Developer or
Franchisor. Developer shall hold harmless and indemnify Franchisor, its
affiliates, and their respective officers, directors, shareholders, and
employees against any claim arising directly or indirectly from, as a result of,
or in connection with Developer's activities hereunder, as well as the costs of
defending against any such claim.
- -------------------------------------------------------------------------------
DEVELOPMENT AGREEMENT Page 20
<PAGE>
21. APPROVALS AND WAIVERS
---------------------
21.1. Whenever this Agreement requires the prior approval or consent of
Franchisor, Developer shall make a timely written request to Franchisor
therefor, and, except as may be otherwise expressly provided herein, such
approval or consent must be obtained in writing and signed by an officer of
Franchisor within seven (7) days of being received.
21.2. Franchisor makes no warranties or guarantees upon which Developer may
rely and assumes no liability or obligation to Developer by providing any
waiver, approval, consent, or suggestion to Developer in connection with this
Agreement, or by reason of any neglect, delay, or denial of any request
therefor.
21.3. No failure of Franchisor to exercise any right reserved to it in this
Agreement or to insist upon strict compliance by Developer with any obligation
or condition in this Agreement, and no custom or practice of the parties at
variance with the terms hereof, shall constitute a waiver of Franchisor's right
to exercise such right or to demand exact compliance with any of the terms of
this Agreement. Waiver by Franchisor of any particular default by Developer
shall not affect or impair Franchisor's rights with respect to any subsequent
default of the same, similar, or different nature; nor shall any delay,
forbearance, or omission of Franchisor to exercise any power or right arising
out of any breach or default by Developer of any of the terms, provisions, or
covenants of this Agreement affect or impair Franchisor's right to exercise the
same; nor shall such constitute a waiver by Franchisor of any rights hereunder
or rights to declare any subsequent breach or default and to terminate this
Agreement prior to the expiration of its term.
22. SEVERABILITY AND CONSTRUCTION
-----------------------------
22.1. If, for any reason, any provision of this Agreement is determined to
be invalid and contrary to, or in conflict with, any existing or future law or
regulation by a court or agency having valid jurisdiction, such invalidity shall
only apply in the jurisdiction holding such provision invalid and shall not
impair the operation of, or have any other effect upon, such other provisions of
this Agreement as may remain otherwise intelligible. The latter shall continue
to be given full force and effect and bind the parties hereto, and the invalid
provision(s) shall be deemed not to be a part of this Agreement.
22.2. Except as expressly provided to the contrary herein, nothing in this
Agreement is intended, nor shall be deemed, to confer upon any person or legal
entity other than Developer, Franchisor, and such of their successors and
assigns as may be contemplated by Section 17 above, any rights or remedies under
or by reason of this Agreement.
22.3. Any provision or covenant of this Agreement which expressly or by
reasonable implication imposes obligations after the expiration or termination
of this Agreement shall survive such expiration or termination.
22.4. Developer agrees to be bound by any promise or covenant imposing the
maximum duty permitted by law which is subsumed within the terms of any
provision of this Agreement, as though it were separately articulated in and
made a part of this Agreement, that may result (i) from striking from any of the
provisions hereof any portion or portions which a court or agency having valid
jurisdiction may hold to be unreasonable and unenforceable in an unappealed
final
- -------------------------------------------------------------------------------
DEVELOPMENT AGREEMENT Page 21
<PAGE>
decision to which Franchisor is a party, or (ii) from reducing the scope of any
promise or covenant to the extent required to comply with such a court or agency
order.
23. APPLICABLE LAW; REMEDIES
------------------------
23.1. Any action (whether or not arising out of this Agreement) brought by
Developer against Franchisor in any court, whether federal or state, shall be
brought, and any action brought by Franchisor against Developer may be brought,
within the judicial district of the City of Boston, Suffolk County, in the
Commonwealth of Massachusetts. The parties hereby waive all questions of
personal jurisdiction or venue for the purpose of carrying out this provision.
23.2. This Agreement shall be executed and accepted on behalf of Franchisor
in the Commonwealth of Massachusetts by a duly authorized officer, only
following signature by a duly authorized representative of Developer, and shall
be governed by the laws of the Commonwealth of Massachusetts. Franchisor and
Developer consent to be bound by the provisions of such laws.
23.3. No right or remedy conferred upon or reserved to Franchisor or
Developer by this Agreement is intended to be, nor shall be deemed, exclusive of
any other right or remedy herein or by law or equity provided or permitted, but
each shall be cumulative of every other right or remedy.
23.4. Nothing herein contained shall bar Franchisor's right to obtain
injunctive relief against threatened conduct that will cause it loss or damages,
under the usual equity rules, including the applicable rules for obtaining
restraining orders and preliminary injunctions.
23.5. Developer and Franchisor irrevocably waive trial by jury in any
action, proceeding, or counterclaim brought by either of them against the other.
Developer and Franchisor hereby waive to the fullest extent permitted by law any
right to, or claim of, any punitive or exemplary damages against the other and
agree that, in the event of a dispute between them, each shall be limited to the
recovery of any actual damages sustained by it.
24. ARBITRATION OF DISPUTES
------------------------
24.1. Any controversy or claim arising out of or relating to this
Agreement, or the breach hereof, which the parties fail to resolve by agreement,
shall be settled by binding arbitration in the City of Boston, Suffolk County,
in the Commonwealth of Massachusetts, U.S.A. in accordance with the commercial
arbitration rules of the American Arbitration Association, applying the laws of
the Commonwealth of Massachusetts as provided in Section 23 above. If the laws
of the country in which Developer is domiciled do not permit arbitration in the
Commonwealth of Massachusetts, then the arbitration shall take place in England
(United Kingdom) with the rules of the International Chamber of Commerce
applying the laws of the Commonwealth of Massachusetts or, if the application of
such laws shall be prohibited by the country in which the Developer is
domiciled, then applying the laws of England. Notwithstanding the foregoing, if
the application of the laws of England in arbitration proceedings is prohibited
by the country in which Developer is domiciled, then any disputes
- -------------------------------------------------------------------------------
DEVELOPMENT AGREEMENT Page 22
<PAGE>
arising hereunder shall be submitted to the courts of England, to whose
jurisdiction the parties hereby consent, for settlement under the laws of
England.
24.2. Judgment upon any arbitration award so rendered may be entered in any
court having jurisdiction, or application may be made to any such court for
confirmation of such award or additional acceptance of such award, and for an
order of enforcement or other legal remedy, as the case may be. Notwithstanding
the foregoing, Franchisor may elect to forego arbitration and pursue any claim
or dispute relating to its intellectual property rights (including the
Proprietary Marks) in any court of competent jurisdiction.
25. ENTIRE AGREEMENT
----------------
This Agreement, the documents referred to herein, and the Exhibits attached
hereto constitute the entire agreement between Franchisor and Developer
concerning the subject matter hereof and supersede all prior agreements,
negotiations, representations, and correspondence concerning the same subject
matter. Except for those permitted to be made unilaterally by Franchisor
hereunder, no amendment, change, or variance from this Agreement shall be
binding on either party unless agreed to in writing by the parties and executed
by their authorized officers or agents.
26. ACKNOWLEDGMENTS
---------------
26.1. Developer acknowledges that the success of the business venture
contemplated by this Agreement involves substantial business risks and is
largely dependent upon Developer's business skills and financial and other
resources. Franchisor expressly disclaims the making of, and Developer
acknowledges not having received, any warranty or guarantee, express or implied,
as to the potential volume, profits, or success of the business venture
contemplated by this Agreement.
26.2. Developer acknowledges that Developer has received, read, and
understood this Agreement and the attached Exhibits, and that Developer has had
ample time and opportunity to consult with advisors of Developer's own choosing
about the potential benefits and risks of entering into this Agreement.
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DEVELOPMENT AGREEMENT Page 23
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this Agreement on the
day and year first above written.
BOSTON RESTAURANT ASSOCIATES, INC. DEVELOPER
By: _______________________________ By: _______________________________
Title: ____________________________ Title: ____________________________
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DEVELOPMENT AGREEMENT Page 24
<PAGE>
EXHIBIT A
---------
to
PIZZERIA REGINA
---------------
INTERNATIONAL DEVELOPMENT AGREEMENT
-----------------------------------
PROPRIETARY MARKS
-----------------
Date
Registered Marks Type Registered Registration Number
---------------- ---- ---------- ---------------------
The Pizzeria Regina Crown* SM 9/28/82 1210976.00
Pizzeria Regina** TM 9/28/82 1210976.00
Pizzeria Regina Boston's Brickoven Pizza* TM in use pending*
*Will be registered only where Developer and BRAII mutually agree in their
reasonable discretion.
**To be registered everywhere in the Development Area.
- -------------------------------------------------------------------------------
DEVELOPMENT AGREEMENT Page 25
<PAGE>
EXHIBIT B
---------
to
PIZZERIA REGINA
---------------
INTERNATIONAL DEVELOPMENT AGREEMENT
-----------------------------------
DEVELOPMENT AREA
----------------
The Development Area (see Section 1.1) shall be the following:
Worldwide, except for the continents of North and South America, the
Caribbean and similar outlying or affiliated islands, states and territories
belonging to countries located in North and South America.
- -------------------------------------------------------------------------------
DEVELOPMENT AGREEMENT Page 26
<PAGE>
EXHIBIT C
---------
to
PIZZERIA REGINA
---------------
INTERNATIONAL DEVELOPMENT AGREEMENT
-----------------------------------
FRANCHISE AGREEMENT
-------------------
The attached form of Franchise Agreement shall be used by Developer as
a model from which Developer will develop a final Franchise Agreement
appropriate for the System Restaurants in the Development Area.
- -------------------------------------------------------------------------------
DEVELOPMENT AGREEMENT Page 27
<PAGE>
EXHIBIT D
---------
to
PIZZERIA REGINA
---------------
INTERNATIONAL DEVELOPMENT AGREEMENT
-----------------------------------
UNIFORM FRANCHISING
-------------------
OFFERING CIRCULAR
-----------------
- -------------------------------------------------------------------------------
DEVELOPMENT AGREEMENT Page 28
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Boston Restaurant Associates, Inc.
Saugus, Massachusetts
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of our report dated July 2,
1997, relating to the consolidated financial statements of Boston Restaurant
Associates, Inc. appearing in the Company's Annual Report on Form 10-KSB for
the year ended April 27, 1997.
We also consent to the reference to us under the caption "Experts" in the
Prospectus.
BDO Seidman, LLP
Boston, Massachusetts
February 23, 1998
